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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


WINSLOW'S  FORMS 

OF 

Pleading  and  Practice 

UNDER  THE  CODE 

To   Which  is  Added   a   Collection  of 
Approved  Business  Forms 

FOR  USE  IN  ALL  CODE  STATES,  AND  ESPECIALLY  ADAPTED 

TO  MEET  THE  REQUIREMENTS  OF  THE   STATUTES   OF 

WISCONSIN,    MINNESOTA,    IOWA,    NORTH    DAKOTA. 

SOUTH  DAKOTA,  NEBRASKA,  KANSAS,  MISSOURI, 

CALIFORNIA,      IDAHO,       UTAH,      WYOMING, 

WASHINGTON,        OREGON,        MONTANA. 

COLORADO,    ARKANSAS,    OKLAHOMA. 

ARIZONA,    AND    TEXAS 

"With  Notes  and  Citations  of  Statutes 


By 

JOHN  B.  WINSLOW,  LL.  D. 

Chief  Justice  Supreme  Court  of  Wisconsin 
with  the  assistance  of 

ARTHUR  F.  BELITZ,  of  the  Wisconsin  Bar 
Assistant  Revisor  of  Statutes 


SECOND    EDITION 


IN  THREE  VOLUMES 
VOLUME  II 


CHICAGO 

T.  H.  FLOOD  AND  COMPANY 
1915 


T 

19  If 


COFYBIQHT    1906 
BY 

JOHN  B.  WINSLOW 

QHTrRIGHT    1915 
BY 

JOHN  B.  WINSLOW 


CANTWELL  PRINTING  CO. 

Pkinters  and  Binders 

uadison,   wis. 


CHAPTEELIX. 


COMPLAINTS  IN  ACTIONS  FOR  NEGLIGENCE. 


1402.  For  personal  injuries  inflicted 

by  vicious  dog  (Wis,). 

1403.  For  worrying  or  killing  of  ani- 

mals by  vicious  dog. 

1404.  The  same,  to  recover  double 

damages. 

1405.  To  recover  treble  damages  for 

iniories  by-  vicious  dog. 
(Wis.). 

1406.  For     injuries     from     falling 

through  open  hatchway  in 
building. 

1407.  For     injuries     from     falling 

through  hatchway  in  side- 
walk, improperly  covered. 

1408.  For  flowing  water  from  roof 

on  plaintiffs  premises. 

1409.  For  carelessly  kindling  a  fire 

on  defenant's  land,  where- 
by plaintiffs  property  was 
burned. 

1410.  For   undermining   plaintiff's 

land. 

1411.  The  same,  another  form. 

1412.  The  same,  where  plaintiff  has 

built  a  retaining  wall. 

1413.  The  same,  where  plaintiff  is 

the  reversioner. 

1414.  The  same,  where  plaintiff's 

buildings  were  under- 
mined. 

1415.  Against    a    contractor,     for 

leaving  the  street  in  an 
insecure  state,  whereby 
plaintiff's  horse  was  in- 
jured. 

1416.  For   laying   rubbish   in    the 

street,  where  plaintiff  was 
thrown  out  of  his  carriage. 

1417.  For  negUgently  colliding  with 

plaintiffs  carriage  in  the 
highway. 


1418.  The  same,  another  form. 

1419.  Against  owner  and  contractor 

for  injuries  suffered  by 
fall  of  building  materials 
in  the  street  during  the 
erection  of  a  building. 

1420.  For  injuries  from  the  kick  of  a 

horse  allowed  to  run  at 
large,  contrary  to  the  terms 
of  a  city  ordinance. 

1421.  Complaint  for  injuries   suf- 

fered from  defective  iiigh- 
way. 

1422.  Complaint  against  city  for 

sidewalk  injury. 

1423.  The  same,  another  form. 

1424.  For   injuries   resulting   from 

lack  of  guard  or  railing  on 
culvert. 

1425.  From  sidewalk  injury,  from 

lack  of  guard  or  railing. 

1426.  Complaint  for  sidewalk  injury 

caused  by  loose  boards. 

1427.  Allegation  of  rotten  planks 

and  hole  in  sidewalk. 

1428.  For  injury  on  a  sidewalk  re- 

sulting from  accumulation 
of  snow  and  ice. 

1429.  By  administratrix  for  death 

of  her  husband,  resulting 
from  negligent  construc- 
tion of  a  cistern  by  the  mu- 
nicipality. 

1430.  Complaint    for    trespass    by 

city  officers  while  abating 
an  alleged  public  nuisance. 

1431.  For    negligently    leaving    a 

dangerous  structure  in  the 
street. 

1432.  Against    municipality    for 

building  a  street  so  as  to 


'?'40164 


Contents.] 


890 


[Chapter  LIX. 


dam  up  a  river  and  flow 
the  plaintiff's  premises. 

1433.  By  passenger  against  railway 

company,  for  injuries  re- 
sulting from  negligent  col- 
lision of  trains. 

1434.  The  same,  where  passenger 

jumped  from  train  to  avoid 
injury  from  collision. 

1435.  By  passenger  for  injuries  sus- 

tained by  defects  in  sta- 
tion platform. 

1436.  By    passenger,    for    injuries 

from  derailing  of  train  by 
collision  with  cattle  stray- 
ing on  track  through  de- 
fective fence. 

1437.  By    passenger    for    forcible 

ejection  from  train. 

1438.  By  husband  for  injuries  to 

wife  while  a  passenger. 

1439.  By  employee  against  railroad 

company  for  injuries  re- 
sulting from  negligent  con- 
struction and  inspection  of 
track. 

1440.  By  employee  for  injury  from 

defective  track. 

1441.  By  employee  for  injuries  by 

collision 

1442.  By  brakeman  against  corpo- 

ration operating  a  logging 
railroad,  alleging  defective 
equipment  and  track. 

1443.  Brakeman    against    railway 

company  for  injuries  re- 
sulting from  negligent  con- 
dition of  roadbed. 

1444.  By  conductor  of  freight  train, 

for  injuries  from  cattle 
chute  dangerously  near  the 
track. 

1445.  By  a  switchman  injured  by 

defective  blocking  of  track. 

1446.  By    brakeman    for    injuries 

from  defective  brake 
beam. 

1447.  By  section  man  for  injury  re- 

sulting from  defective 
brake  rod. 


1448.  By  employee  against  railway 

company,  for  injuries  by 
explosion  of  defective 
boiler. 

1449.  By  stevedore  against  steam- 

boat company,  for  injuries 
from  falling  through  open 
hatchway. 

1450.  By  brakeman  for  injury  by 

negligence  of  engineer  in 
operating  freight  engine. 

1451.  Against  railway  company  for 

collision  at  crossing. 

1452.  The  same,  another  form. 

1453.  The  same,  another  form. 

1454.  By  passenger  in  street   car 

against  railway  company 
whose  engine  negligently 
collided  with  street  car. 

1455.  By  passenger  against  street 

railway  company,  for  in- 
juries from  premature 
starting  of  car. 

1456.  The  same,  another  form. 

1457.  By  passenger  against  street 

railway  company,  for  in- 
juries resulting  from  defec- 
tive insulation. 

1458.  By  administrator,  for  death 

of  person  killed  by  collision 
with  street  car. 

1459.  By  administrator  of  a  person 

killed  by  gross  negligence 
of  the  motorman  of  an  in- 
terurban  street  car. 

1460.  By  infant,  for  injuries  from 

being  negligently  run  over 
by  a  street  car. 

1461.  Against    railroad    company, 

for  negligently  killing  cat- 
tle; general  form. 

1462.  Against  railroad  company  for 

killing  stock,  where  road  is 
not  fenced,  as  required  by 
law. 

1463.  The    same;    Iowa    and    Ne- 

braska. 

1464.  Against  railroad  company  for 

negligently  setting  fire. 


Chapter  LIX.] 


891 


[Contents. 


1465.  By  servant  against  employer 

for  in j  lilies  from  defective 
or  dangerous  machinery; 
general  from. 

1466.  The  same,  by  infant,  or  other 

person  inexperienced  in  the 
use  of  tools  and  who  re- 
ceived no  warning. 

1467.  The  same,  machine  defective 

and  place  unsafe 

1468.  By    employee    against    em- 

ployer for  injuries  from  de- 
fective scaffold. 

1469.  By    employee    against    em- 

ployer for  injuries  by  ob- 
vious defects  in  machinery 
which  defendant  has  prom- 
ised to  repair. 

1470.  By  employee     against    em- 

ployer for  injuries  suffered 
by  reason  of  employment 
of  incompetent  fellow-ser- 
vant 

1471.  By  minor  servent  against  em- 

ployer, for  injuries  received 
in  driving  dangerous  horse. 

1472.  By  servant  against  employer 

for  negligent  exposure  to 
infectious  disease. 

1473.  Against  one  who  has  placed 

an  attractive  and  danger- 
ous nuisance  in  the  street, 
injuring  child  playing 
thereon. 

1474.  Against   druggist   for  negli- 

gently putting  up  a  poison- 
ous drug. 

1475.  For      negligently     leaving 

horses  unhitched  in  the 
street. 

1476.  Against    superintendent    of 

hospital  for  improper  treat- 
ment of  a  patient. 

1477.  For  tenant  against  landlord 

for  leasing  infected  dwell- 
ing. 

1478.  Outline  of  complaint  against 

owner  of  apartment  or  ten- 


ement house  for  injury  re- 
sulting from  defective 
stairway  or  porch. 

1479.  For  injury  to  shade  trees  by 

gas. 

1480.  Outline  of  complaint  for  in- 

juries sustained  from  elec- 
tric wire  unguarded  on  the 
street. 

1481.  Outline  of  complaint  for  neg- 

ligent failure  to  shut  off  gas 
meter. 

1482.  Against  street  car  company 

for  colliding  with  automo- 
bile. 

1483.  For   injury   to   traveler   on 

highway  from  explosion  on 
premises  adjoining  high- 
way. 

1484.  By  pedestrian  run  down  in 

street,  against  automobile 
owner. 

1485.  The  same,  where  automobile 

was  driven  by  servant. 

1486.  Outline  of  complaint  for  neg- 

ligence in  failing  to  adopt 
rules  for  the  safety  of  em- 
ployees. 

1487.  Outline  of  complaint  for  pro- 

viding unsafe  place  to 
work. 

1488.  For  damages  resulting  from 

fall  of  a  wall  negligently  al- 
lowed to  stand  after  a  fire. 

1489.  Against   agricultural  society 

for  injuries  from  fall  of 
grandstand. 

1490.  Against  street  railroad  com- 

pany for  running  down 
passenger  who  had  just 
alighted  from  a  car. 

1491.  Against  railroad  company  for 

starting  a  train  before  pas- 
senger had  time  to  alight. 

1492.  Against  a  railroad  company 

for  violent  ejection  from 
freight  train  in  motion. 


Form  1402.]  892  ] Chapter  LIX, 

In  actions  for  damages  resulting  from  the  negligence  of 
another  the  complaint  should  succinctly  set  forth  the  facts 
showing  [1]  a  duty  owing  by  the  defendant  to  the  plaintiff, 
[2]  which  has  been  neglected  by  the  defendant,  and  [3]  that 
the  plaintiff  has  suffered  injury  as  the  proximate  result  of 
such  neglect.  It  is  not  necessary  [except  in  Iowa:  Gregory 
V.  Wood  worth,  93;  Iowa,  246;  61  N.  W.  962]  to  allege  the 
exercise  of  due  care,  or  the  want  of  contributory  negligence 
on  the  part  of  the  plaintiff,  though  such  allegations  are 
frequently  inserted;  but  if  the  allegations  of  fact  of  the  com- 
plaint conclusively  show  that  the  plaintiff  was  guilty  of 
contributory  negligence  an  allegation  of  due  care  will  not 
avail,  and  the  complaint  will  be  demurrable.  The  statutes 
of  the  various  states  requiring  notice  of  injury  and  filing 
of  claim  within  certain  periods  after  the  accident  should 
be  carefully  examined  in  every  case.  Where  the  liability 
is  created  by  statute,  as  in  case  of  highway  injuries,  the 
giving  of  these  notices  is  necessary  to  the  cause  of  action, 
and  must  be  alleged  in  the  complaint,  but  if  the  action  arises 
from  common  law  principles  the  giving  of  the  notice  need 
not  be  pleaded  in  the  complaint  unless  the  statute  requires 
it,  and  the  failure  to  give  notice  is  a  matter  of  defense. 

1402.    For  personal  injuries  inflicted  by  vicious  dog  (Wis. 
Stats.  1913  sec.  1620).^ 

I.  That  on  and  prior  to  the day  of ,  19. .,  the 

1  In    "Wisconsin    allegation    and  Codes  1908  sec.  1220;  Kans.  Gen. 

proof  of  scienter  is  unnecessary  as  Stats.  1909  sec.  9092,  9093;  Minn, 

well  in  case  of  injuries  to  persons  Gen.    Stats.    1913   sec.    6052;   Mo. 

as  in  case  of  injuries  to  cattle  by  R.  S.  1909  sec.  855,  6458;  Neb.  R.  S. 

dogs     Legault     v.    Malacker,    156  1913  sec.  172;  N.  Dak.  Rev.  Codes 

Wis.    507;     145    N.    W.    1081;    in  1905  sec.  1958;  S.  Dak.  P.  C.  1908 

that  state  also  notice  to  the  owner  sec.  2956;  Oregon.  Laws  1910  sec. 

of  the  vicious  character  of  the  dog  5522;  Utah  Comp.  Laws,  1907  sec. 

is  not   necessary    Schaller  v.  Con-  70.     In  Iowa  notice  is  unnecessary' 

nors,  57  Wis.  321;   15   N.  W.  389,  in    case    of    injury    to    person    or 

unless    it    is    desired    to    recover  property;   Iowa  Supp.   Ann.    Code 

double    or    treble    damages.    Wis.  1907   sec.   2340;   the  defendant  in 

Stats.   1913  sec.   1620,   1621,   1622.  order   to   defeat   a   recovery   must 

Nor  is  it  necessary  in  the  following  plead     and     prove     that     plaintiff 

states  in  case  of  worrying  or  killing  at  the  time  was  doing  an  unlawful 

of  domestic  animals:    Ark.  Dig.  of  act    directly    contributing    to    the 

Stats.    1904    sec.    7892-7986;    Cal.  injury  sustained;  Beckler  v.  Mer- 

C.   C.  1906  sec.  3341;  Colo.   Code  ringer,  131  Iowa.  614;  109  N.  W. 

Ann.   1911   sec.   6387;   Idaho  Rev.  185. 


Chapter  LIX.]  893  [Forms  1403,  1404. 

defendant  owned  [and  kept]  a  certain  dog  [named ]* 

and  that  on  said  day,  while  the  plaintiff  [in  the  exercise  of 
due  and  ordinary  care]  was  lawfully  upon  the  highway  [or, 
within  the  enclosure  of  G. . . .  H. . . .]  the  said  dog  attacked 
and  bit  the  plaintiff  and  wounded  him  in  the  leg,  whereby 
this  plaintiff  became  lame,  and  so  remained  for  ....  weeks, 
and   was   thereby    occasioned   great    pain,    and   prevented 

from  going  on  with  his  business  as and  was  obliged 

to  and  actually  did  expend dollars  in  endeavoring 

to  heal  himself  of  said  wound,  all  to  his  damage 

dollars. 

[In  Jurisdictions  where  it  is  necessary  to  allege  scienter,  sub- 
stitute prior  to  the*  the  following;    I.    That  on  and  prior  to 

the    ....    day  of ,   19..,   the  defendant  owned   and 

kept  a  vicious  dog  well  knowing  him  to  be  of  ferocious  and 
mischievous  disposition  and  accustomed  to  worry  domestic 
animals  and  attack  and  bite  mankind,  etc.] 

WHEREFORE,  etc. 

1403.  For  worrying  or  killing  of  animals  by  vicious  dog.' 

[As  in  last  preceding  form  to  the*  and  continuing]:  and  that 
on  said  day,  and  on  other  days  between  that  and  the  com- 
mencement of  this  action  the  said  dog  [wrongfully  came 
upon  the  plaintiff's  land,  and  there]  hunted,  chased,  bit, 
and  worried  twenty  sheep  and  ten  lambs  of  the  plaintiff; 
by  means  whereof  five  of  the  said  sheep  and  lambs  of  the 

plaintiff,  being  of  the  value  of   dollars,  died,  and 

became  of  no  value  to  the  plaintiff,  and  the  residue  of  the 
said  sheep  and  lambs  of  the  said  plaintiff,  being  also  of  great 
value,  were  injured,  and  rendered  of  no  value  to  the  plaintiff^ 
all  to  his  damage dollars. 

WHEREFORE,  etc. 

1404.  The  same,  to  recover  double  damages  (Wis.  Stats. 

1913  sec.  1621). 

[As  in  last  preceding  form,  adding  thereto  this  allegation]: 
II.  That  prior  to  the  inflicting  of  the  said  injuries,  and  on 

or  about  the day  of 19. .,  the  said  dog  worried, 

chased  [and  killed]  certain  sheep  [horses  or  cattle]  the  prop- 

*  See  preceding  note. 


Forms  1405, 1406.]  894  [Chapter  LIX. 

erty  of  one  L. . . .  M and  on  the  ....  day  of , 

19. .,  the  said  L M duly  notified  the  said  defen- 
dant of  such  last  named  worrying  [and  killing]  but  that  the 
said  defendant,  after  such  notification,  wholly  failed  and 
neglected  to  keep  said  dog  confined  as  required  by  law, 
by  reason  of  which  neglect  and  failure  the  said  dog  inflicted 
the  injuries  upon  the  plaintiff's  sheep  first  herein  men- 
tioned- 
WHEREFORE,  etc. 

1405.  To  recover  treble  damages  for  injuries  by  vicious 

dog  (Wis.  Stats.  1913  sec.  1622). 

[As  in  Forms  1402  or  1403,  adding  thereto  this  allegation] : 
II.    That  prior  to  the  inflicting  of  said  injuries,  and  on  or 

about  the day  of ,  19. .,  the  said  dog  attacked 

and  bit  one  L M and  severely  wounded  him,  and 

said  L M on  the   day  of ,  19. .,  duly 

notified  the  said  defendant  of  the  fact  of  said  last  named 
attack  and  wounding. 
WHEREFORE,  etc. 

1406.  For  injuries  from  falling  through  open  hatchway 

in  building. 

I.  That  the  defendant,  at  the  time  hereinafter  mentioned 
was  the  owner  and  had  possession  and  control  of  a  certain 
building  and  premises  [briefly  designate  them]  with  the  appur- 
tenances thereto  belonging,  which  building  was  then  occu- 
pied by  him  as  [briefly  designate  the  uses  of  the  building]. 

II.  That  said  building    was    negilently    and    carelessly 
.built,  in  this,  that  there  was  in  the  public  hall  or  passageway 

in  the  second  story  of  the  same,  at  the  time  of  its  erection 
as  well  as  at  the  time  hereinafter  mentioned,  an  unguarded 
hole  or  hatchway  through  the  floor,  opening  into  the  first 
story. 

III.  That  the  defendant,  well  knowing  the  premises, 
did,  on  the  . . .  .day  of ,  19. .,  negligently  and  wrong- 
fully leave  the  said  hatchway  uncovered  and  unprotected, 
and  insufficiently  lighted,  by  means  whereof  the  plaintiff, 
who  was  then  lawfully  in  said  building,  and  in  the  pursuit 
of  his  business  [or,  by  the  permission  and  invitation  of  the 


Chapter  LIX.]  895  [Form  1407. 

defendant]  then  and  there  necessarily  and  carefully  passing 
along  said  hall,  fell  through  said  hatchway. 

IV.  That  by  means  of  the  premises  the  plaintiff  was 
greatly  hurt  and  injured,  and  became  sick  and  lame,  and 
so  remained  for  a  long  time  [or,  so  still  remains]  and  was 

during  the  space  of prevented  from  attending  to  his 

business  as and  was  compelled  to  and  did  expend 

dollars  in  endeavoring  to  be  healed  of  his  said  injuries 

[or  otherwise  state  injuries  to  plaintiff,  according  to  the  fact] 
to  his  damage dollars. 

[In  Wisconsin  add];    V.     That  afterwards,  and  on  the 

....  day  of ,  19. .,  the  plaintiff  caused  to  be  served 

upon  the  defendant  a  notice  in  writing  [a  copy  of  which  is 
attached,  marked  Exhibit  A]  signed  by  himself  which 
notice  stated  the  time  and  place  where  said  damage  and 
injuries  occurred,  a  brief  description  of  said  injuries,  the 
manner  in  which  they  were  received,  and  the  grounds  on 
which  the  said  claim  is  made,  and  that  satisfaction  thereof 
is  claimed  of  the  defendant.* 

WHEREFORE,  etc. 

1407.    For  injuries  from  falKng  throngh  hatchway  in 
sidewalk,  improperly  covered. 

I.     That  on  the. . . .  day  of ,  19. .,  the  defendant 

was  [the  owner  and]  in  possession  of  that  certain  lot  and 
store  building  thereon  described  as  [insert  description]  the 

same  being  adjacent  to street  in  the  city  of   

and  that  on  the  day  aforesaid  there  was  a  certain  hole  or 
hatchway  in  the  sidewalk  on  the  ....  side  of  said  street 
adjoining  said  store  building,  which  opened  into  the  cellar 
of  said  building  and  was  kept  and  maintained  by  the  defend- 

*  In   Wisconsin   in   all   cases   of  be  commenced  and  the  complaint 

personal   injuries   either   notice   in  served     within     the     year.       Sec. 

writing  must  be  given  within  two  18166.       These     are     statutes     of 

years    after    the    accruing    of    the  limitation  and  not  conditions  pre- 

damage    or    the    action    must    be  cedent  to  the  right  of  action,  and 

commenced     and     the    complaint  the   complaint   is   not   subject   to 

served  within   that   period.     Wis.  challenge   by  general   demurrer   if 

Stats.    1913   sec.   4222,    subsec.    5.  it   contains   no    allegation   on   the 

In  all  cases  of  injuries  to  property  subject.    Meisenheimer  v.  Kellogg, 

by     railroad     corporations     either  106    Wis.    30;    81    N.    W.    1033; 

notice   in   writing   must   be   given  Gatzow  v.   Buening,   106  Wis.    1; 

within  one  year  after  the  accruing  81  N.  W.  1003. 
of  the  damage  or  the  action  must 


Forms  1408,  1409.]  896  [Chapter  LIX. 

ant  for  the  purpose  of  receiving  coal  and  other  materials 
into  said  cellar. 

II.  That  the  defendant,  on  the  day  and  year  aforesaid, 
wrongfully  and  negligently  permitted  the  cover  of  said 
hatchway  to  be  and  remain  loose,  so  that  when  stepped 
upon  it  would  tip  up,  and  that  by  reason  of  said  negligent 
condition  of  said  cover  the  plaintiff,  who  was  then  and  there 
passing  along  said  public  street,  upon  the  said  sidewalk, 
without  fault  on  his  part,  fell  into  said  hole,  and  thereby 
the  left  leg  of  the  plaintiff  was  fractured  and  broken.  [State 
other  injuries  and  damage.] 

III.  [Allege  notice  if  necessary,  as  in  last  preceding  form.] 
WHEREFORE,  etc. 

1408.  For  flowing  water  from  roof  on  plaintiff's  pre- 

mises. 

I.  That  on  the  ....  day  of ,  19..,  the  plaintiff 

was  lawfully  possessed  of  a  dwelling  house  and  premises, 
situate  in  the  county  aforesaid  and  in  which  the  pylaintiff 
and  his  famUy  then  resided,  described  as  follows  [describing 
same]. 

II.  That  the  defendant  wrongfully  erected  a  buDding 
near  to  the  said  dwelling  house  of  the  plaintiff  in  a  careless 
and  improper  manner,  to-wit,  so  that  the  eaves  thereof 
extended  over  and  upon  the  plaintiff's  said  premises  and 
building,  and  that  by  reason  thereof,  on  said  day,  and  at 
other  times  afterwards  and  before  this  action,  large  quantities 
of  rain  water  ran  from  said  building  upon  and  into  the  said 
dwelling  house  and  premises  of  the  plaintiff,  and  the  walls, 
ceilings,  papering,  and  other  parts  thereof  were  thereby 
wet  and  damaged,  and  became  less  fit  for  habitation,  to 
the  plaintiff's  damage dollars. 

WHEREFORE,  etc. 

1409.  For  carelessly  kindling  a  fire  on  defendant's  land, 

whereby  plaintiff's  property  was  burned. 
I.     That  on  the day  of ,  19. .,  at the 

plaintiff  was  and  still  is  possessed  of  certain  lands,  described 
as  follows  [describe  same],  on  which  there  was  an  orchard  and 
fences,  and  also  a  barn  containing  sixty  tons  of  hay,  all 
which  the  defendant  well  knew. 


Chapter  LIX.]  897  [Forms  1410,  1411. 

II.  That  the  defendant  on  that  day  intentionally  kindled 
a  fire  on  his  land  next  adjoining  to  the  plaintiff's  said  lands, 

and  at  the  distance  of from  the  plaintiff's  said  land, 

and  so  negligently  watched  and  tended  the  said  fire  that  it 
came  into  the  plaintiff's  said  land,   consumed  said  barn 

and  hay,  of  the  value  of dollars,  and  also  forty-five 

rods  of  post  and  rail  fence  of  the  value  of dollars, 

and  killed  forty-five  fruit  bearing  apple  trees  in  said  orchard, 
and  consumed  and  destroyed  the  plaintiff's  grass  growing 
on  said  land,  to  his  damage dollars. 

WHEREFORE,  etc 


1410.    For  nndermining  plaintiff's  land. 

I.  That  at  the  times  hereinafter  mentioned,  the  plaintiff 
was  possessed  of  certain  pasture  land,  being  a  part  of  his 

farm  in  the  town  of described  as  follows  [describe 

same]. 

II.  That  in  the  month  of ,  19..,  the  defendant 

wrongfully  and  negligently  excavated  the  la.nd  adjacent  to 
the  plaintiff's  said  land,  and  took  away  soil  therefrom, 
without  leaving  proper  and  sufficient  support  for  the  soil 
of  the  plaintiff's  land  in  its  natural  state,  whereby  it  sank 
and  gave  way,  to  the  damage  of  the  plaintiff dollars. 

WHEREFORE,  etc. 


1411.    The  same,  another  fonn. 

I.  That  at  the  times  herein  mentioned  plaintiff  was  and 
still  is  the  owner  of  [describe  premises]. 

II.  That  on  and  between  the  ....  day  of ,  19. ., 

and  the  ....  day  of ,  19 . . ,  the  defendant  excavated 

the  land  adjacent  to  said  premises  on  the side  thereof 

to  a  depth  of  about feet  and  carried  away  the  soil 

therefrom,  and  thereby  removed  the  support  for  the  soil 

of  plaintiff's  said  land  in  its  natural  state,  whereby  it  sank 

and  gave  way  along  the  entire side  of  said  lot  and 

is  still  sinking  and  giving  way,  and  by  reason  thereof  has 

been  lessened  in  value  in  the  sum  of dollars. 

WHEREFORE,  etc. 
57 


Forms  1412-1414.]  898  [Chapter  LIX. 

1412.  The  same,  where  plaintiff  has  built  a  retaining 

wall. 
[Allege  ownership  of  premises  and  removal  of  adjacent  soil 
as  in  last  preceding  form]. 

III.  That  in  consequence  of  the  said  excavation  so  made 
by  the  defendant  the  foundation  walls  of  the  plaintiff's 
dwelling  house  [or  other  building  according  to  the  fact]  were 
undermined  and  weakened  and  it  became  necessary  in  order 
to  preserve  the  said  building  from  falling  to  strengthen, 
to  build  and  repair  the  same  and  to  build  a  retaining  wall 

along  the    side  of  his  said  lot,   and  that  plaintiff 

thereby  necessarily  incurred  an  expense  of   dollars 

for  labor  and  materials  in  making  said  repairs  and  construct- 
ing said  retaining  wall. 

IV.  That  by  reason  of  the  premises  the  plaintiff  has  been 
damaged  in  the  sum  of dollars. 

WHEREFORE,  etc. 

1413.  The  same,  where  plaintiff  is  the  reversioner. 

I.  That  at  the  time  hereinafter  mentioned,  the  plaintiff 
was,  and  still  is  the  owner  of  certain  land  [designate  it  as 
above]  which  was  then  in  the  occupation  of  M . . . .  N . . . . 
as  tenant  thereof  to  the  plaintiff. 

II.  [As  in  preceding  forms], 
WHEREFORE,  etc. 

1414.  The  same,  where  plaintiff's  buildings  were  under- 

mined. 

I.  That  at  the  times  hereinafter  mentioned,  plaintiff  was 
possessed  of  certain   land,   with   buildings   thereon,   being 

his  house  and  lot  in  the  village  of   [briefly  describe 

the  premises]  which  were  supported  by  the  adjacent  land 
and  the  soil  thereof,  and  that  the  plaintiff  was  entitled  to 
have  them  so  supported. 

II.  That  in  the  month  of 19..,  the  defendant 

wrongfully  and  negligently  excavated  the  land  adjacent  to 
plaintiff's  said  land  and  buildings,  and  took  away  the  soil 
therefrom,  without  leaving  proper  or  sufficient  support  for 
the  plaintiff's  said  land  and  buildings,  whereby  the  same 
sank  and  gave  way,  and  the  house  fell  in  and  was  destroyed 
and  the  goods  of  the  plaintiff  were  damaged  and  broken 


Chapter  LIX.]  899  [Forms  1415,  1416. 

and  the  plaintiff  incurred  expense  in  procuring  another 
house,  and  in  removing  and  repairing  his  goods,  and  in 
removing  the  ruins  of  the  house  and  rebuilding  the  same, 

to  his'  damage   dollars. 

WHEREFORE,  etc. 

1415.  Against  a  contractor,  for  leaving  the  street  in  an 

insecure  state,  whereby  plaintiff's  horse  was  in- 
jured. 

I.  That  at  the  time  hereinafter  mentioned,  the  defen- 
dant was  engaged  in  laying  pipes  in  and  under  the  highway 

known  as street,  in  the  city  of for  the  purpose 

of  lighting  the  said  highway  with  gas,  and  making  the  proper 
trenches  for  the  purpose;  and  that  it  was  defendant's  duty 
when  such  pipes  were  laid  down,  to  fill  up  properly  the  said 
trenches,  and  to  put  and  leave  the  said  highway  clear  and 
in  a  reasonably  secure  condition. 

XL  That  the  defendant  and  his  servants,  on  the  ....  day 
of ,  19. .,  accordingly  took  up  part  of  the  said  high- 
way, and  made  trenches  and  holes  therein,  and  laid  down 
said  pipes,  and  displaced  the  earth  and  materials  of  the 
said  highway,  and  so  carelessly  and  negiligently  filled  said 
trenches,  and  left  the  said  highway  in  so  dangerous  and 
improper  state,  by  reason  of  the  lack  of  lights  or  barriers, 

that  a  horse  of  the  plaintiff,  of  the  value  of dollars, 

which  he  was  then  and  there  lawfully  driving  along  the  said 
highway,  sunk  and  fell  therein,  and  was  wounded  and  lamed, 
and  rendered  of  little  or  no  value,  to  the  palintiff's  damage 
dollars. 

WHEREFORE,  etc. 

1416.  For  laying  rubbish  in  the  street,  whereby  plaintiff 

was  thrown  out  of  his  carriage. 

I.  That  the  defendant,   on  or  about  the    ....    day  of 

,  19 . .,  wrongfully  placed  a  large  quantity  of  building 

materials  and  earth  in  the  public  highway  [known  as 

street]   in    and   negligently  left   the   same   therein, 

obstructing  the  highway  during  the  night-time,  and  without 
placing  any  light  or  signal  there  to  indicate  danger. 

II.  That  in  consequence  of  said  negligence  and  improper 
conduct  of  the  defendant,  in  the  night-time  of  that  day, 


Form  1417.]  900  [Chapter  LIX. 

the  carriage  of  the  plaintiff,  of  the  value  of dollars, 

with  the  plaintiff  therein,  then  passing  through  said  street, 
was  accidentally  driven  against  the  said  obstructions,  and 
was  thereby  overturned;  by  means  whereof  the  plaintiff 
was  bruised  and  wounded  [allege  injuries  and  damage  as  in 
other  forms]. 

III.  [In  Wisconsin  add  allegation  of  notice  within  the 
ijear,  or  of  timely  commencement  of  the  action  as  in  Form 
1406.] 

WHEREFORE,  etc. 


1417.    For  negligently  colliding  with  plaintiff's  carriage 
in  the  highway. 

I.  That  on  the day  of ,  19. .,  the  plaintiff 

was  riding  with  due  care  along  the  public  highway,  in  the 

town  of     ,  in  a  chaise,  drawn  by  a  horse,  both  the 

property  of  the  plaintiff,  of  the  value  of dollars. 

II.  That  the  defendant  was  then  the  proprietor  of  a 
stage  and  four  horses,  which  were  then  passing  along  said 
highway  in  the  possession  of  defendant  [or,  of  the  defendant's 
sei"vant]  who  was  driving  the  same. 

III.  That  defendant  [or,  that  said  servant]  carelessly 
drove  and  managed  said  stage  and  horses  at  a  dangerous 
rate  of  speed  and  without  proper  guidance;  that  by  reason 
of  his  said  negligence  said  stage  struck  the  plaintiff's  chaise, 
and  overthrew  and  broke  the  same,  and  threw  down  the 
plaintiff's  horse,  breaking  his  leg,  and  threw  the  plaintiff 
out  of  his  chaise  upon  the  ground  [or  otherwise  describe  the 
accident,  according  to  the  fact],  whereby  the  plaintiff  was 
bruised  and  wounded,  and  was  for  ....  days  prevented 
from  attending  to  his  business  and  was  put  to  great  expense 
in  repairing  his  chaise  and  in  endeavoring  to  be  healed 
of  his  own  hurts,  and  he  was  obliged  to  kill  his  said  horse 
in  consequence  of  his  leg  being  broken  as  aforesaid,  to  the 
damage  of  the  plaintiff dollars. 

IV.  [In  Wisconsin  add  allegation  of  notice  or  commence- 
ment of  action  within  one  year,  as  in  Form  1406.] 

WHEREFORE,  etc. 


Chapter  LIX.]  901  [Form  1418. 

1418.     The  same,  another  form.* 

I.  [As  in  last  preceding  form.] 

II.  That  the  defendant  was  at  the  same  time  passing 
along  said  highway  in  a  carriage  drawn  by  two  horses, 
which  he  was  driving;  and  that  the  defendant  then  and 
there  carelessly  and  negilgently  drove  and  managed  his 
said  horses  and  vehicle  in  great  speed  along  said  highway 
behind  the  plaintiff's  horse,  and  that  by  reason  of  said  negli- 
gence, and  without  fault  on  the  part  of  the  plaintiff,  said 
defendant's  vehicle  and  horses  struck  the  plaintiff's  vehicle 
with  great  force,  and  thereby  the  plaintiff  was  thrown  from 
his  carriage  to  the  ground  with  great  force  amd  violence, 
and  his  arm,  shoulder  and  back  were  seriously  and  perma- 
nently injured,  and  his  body  otherwise  bruised  and  injured, 
from  which  injuries  he  became  sick,  sore  and  disordered, 
and  suffered  great  pain,  and  was  for  a  long  time  confined  to 
his  bed  and  prevented  from  attending  to  his  business  as  a 
farmer;  that  by  reason  of  the  said  negligence  of  the  defendant 
the  plaintiff's  carriage  was  damaged  by  the  breaking  of  an 
axle  and  wheel,  in  consequence  of  the  said  collision,  and 
of  the  further  fact  that  the  plaintiff's  horse  became  fright- 
ened as  the  result  of  said  collision  and  ran  away,  that  the 
plaintiff  was  put  to  expense  for  repairing  his  said  carriage, 

amounting  to  the  sum  of dollars;  and  that  by  reason 

of  the  facts  and  circumstances  above  named  the  plaintiff 
has  suffered  damage  in  the  amount  of dollars. 

III.  [//  notice  of  the  injury  is  required  to  be  served  by  the 
statute,  allege  the  same  as  in  Form  1406.] 

WHEREFORE,  etc. 


*  This  complaint  is  in  substance  the  same  more  definite  and  cer- 
the  complaint  in  the  case  of  Han-  tain  in  these  particulars  was  de- 
son  V.  Anderson,  90  Wis.  195;  62  N.  nied.  It  was  said,  however,  that 
W.  1055,  which  was  held  to  be  suffi-  the  defendant,  if  he  desired  an 
ciently  definite  and  certain  as  to  the  itemized  statement  of  the  dam- 
grounds  of  negligence  claimed,  ages,  could  have  demanded  a  bill 
and  the  particular  injuries  re-  of  particulars. 
ceived,  so  that  a  motion  to  make 


Form  1419.]  902  [Chapter  LIX. 

1419.  Against  owner  and  contractor  for  injuries  suffered 
by  fall  of  building  materials  in  the  street  dur- 
ing the  erection  of  a  building  (adapted  from 
Smith  V.  Milwaukee  B.  &  T.  Exch.,  91  Wis.  360; 
64N.  W.  1041). « 

I.  That  the  defendant  C . . . .  D . . . ,  is  the  owner  of  that 
certain  parcel  of  real  estate  located  upon  the  S.  E.  corner  of 

street  and street,  in  the  city  of ,  and 

was  at  the  time  hereinafter  mentioned  erecting  and  con- 
structing upon  the  said  lot  a  six  story  building,  and  that 
the  defendant  E . . . .  F . . . . ,  by  virtue  of  a  contract  previous- 
ly made  with  the  said  defendant  C . . . .  D . . .  was  doing 
the  mason  work  on  said  building  for  the  said  C . . . .  D 

II.  That  by  the  terms  of  an  ordinance  duly  passed  by 

the  common  council  of  the  city  of on  the  ....  day 

of   ,   19..,  which  said  ordinance  was  in  effect  and 

unrepealed  at  the  date  hereinafter  mentioned,  any  owner 
or  contractor  who  shall  build  or  cause  to  be  built  within 

the  said  city  of any  building  adjacent  to  any  public 

sidewalk  is  required  after  the  completion  of  the  first  story 
of  said  building  to  cause  a  passage  way  to  be  laid  on  front 
of  said  building  upon  the  sidewa  k  for  the  convenience  of 
foot  passengers  and  to  cause  said  passage  way  to  be  roofed 
over  at  a  height  of  not  less  than  ten  feet  [or  set  forth  the 
ordinance  in  haec  verba]. 

III.  That  said  building,  so  in  process  of  erection,  was 
at  the  date  hereinafter  mentioned  within  the  limits  of  the 

said  cit^  of ,  and  was  and  is  adjacent  to  the  public 

sidewalk  upon  the   side  of  said   street,  and 

that  the  first  story  thereof  had  been  completed,  and  that 
the  defendants  were  then  at  work  upon  the  third  or  fourth 
story  of  said  building. 

IV.  That  on  the  ....  day  of ,  19 .  .,  at  about  the 

hour  of  ....  o'clock  a.  m.  of  that  day,  the  plaintiff  was 
walking  north  upon  the   side  of  said street 

'  In  the  case  from  which  this  of  negligence  on  account  of  the 
form  is  adapted  it  was  held  that  failure  of  the  owner  and  con- 
such  an  ordinance  was  reasonable,  tractor  to  comply  with  the  ordi- 
and  that  when  a  passer-by  was  in-  nance,  because  the  ordinance  was 
jured  by  reason  of  the  failure  to  framed  to  protect  such  passer-by 
comply  with  the  provisions  of  the  from  injury, 
ordinance   he   could   base   a   claim 


Chapter  LIX.]  903  [Form  1120. 

adjacent  to  said  building,  as  she  had  a  lawful  right  to  do, 
and  in  the  exercise  of  dure  care,  and  when  she  was  passing 
in  front  of  the  said  building  she  was  struck  upon  the  head 
by  a  brick  which  fell  from  said  building  a  distance,  as  she 
is  informed  and  believes,  of  about  forty  feet. 

V.  That  the  said  defendants,  negligently  and  carelessly 
performed  work  in  and  about  the  erection  and  costruction 
of  said  building,  and  negligently  permitted  the  said  brick 
to  fall  which  struck  the  plaintiff  upon  the  head  as  afore- 
said, and  negligently  failed  to  erect  any  barriers  or  guards 
over  or  upon  said  sidewalk,  and  wholly  failed  to  comply 
with  the  requirements  of  the  ordinance  aforesaid,  and 
failed  to  give  any  notice  or  warning  to  persons  using  said 
sidewalk  that  there  was  danger  in  walking  thereon  from 
the  falling  of  building  materials;  and  that  by  reason  of 
such  negligence  and  carelessness  on  the  part  of  said  defen- 
dants the  plaintiff  was  injured  as  aforesaid,  and  not  other- 
wise. 

VI .  That  the  said  brick  which  struck  the  plaintiff  on 
the  head  as  aforesaid  crushed  in  the  skull  so  that  pieces 
of  the  broken  bones  of  the  skull  had  to  be  extracted  together 
with  a  portion  of  the  brain,  and  that  the  plaintiff  will  always 
have  a  hole  in  the  skull  where  said  bone  was  so  crushed, 
and  that  by  reason  of  such  accident  she  has  suffered  great 
pain  and  mental  distress,  and  was  for  a  long  time  confmed 
to  her  bed;  and  that,  as  she  is  informed  and  believes,  the 
injury  to  her  head  and  brain  will  be  permanent,  and.  that 
by  reason  thereof  the  plaintiff  wiU  continue  to  suffer  physical 
and  mental  distress  for  the  rest  of  her  life;  all  to  her  damage 
in  the  sum  of dollars. 

VII.  [Allege  notice  of  injury,  if  necessary,  as  in  Form 
1406.] 

WHEREFORE,  etc. 

1420.  For  injuries  from  the  kick  of  a  horse  allowed  to 
run  at  large,  contrary  to  the  terms  of  a  city  ordi- 
nance (adapted  from  Decker  v.  McSorley,  111 
Wis.  91;  86N.  W.  554). 

I.     That  the  defendant  C .  . . .  D  . . . .  on  the  ....  day  of 

,  19. .,  was,  and  for  several  years  prior  thereto  had 

been,  a  resident  of  the  city  of a  municipal  corpora- 


Form  1421.]  904  [Chapter  LIX. 

tion  organized   and   existing   under  the  laws  of  the   state 

of ,  and  that  upon  the  date  aforesaid,  and  for  several 

years  prior  thereto,  one  of  the  ordinances  of  the  said  city 

of ,  duly  enacted  under  and  pursuant  to  the  provisions 

of  the  charter  of  said  city  and  the  laws  of  said  state,  pro- 
hibited the  running  at  large  of  horses  within  the  limits  of 
said  city,  and  provided  among  other  things  that  the  owner 
or  any  person  in  whose  charge  such  animal  might  be,  and 
who  should  permit  the  same  to  run  at  large  within  the 
limits  of  said  city,  should  be  liable  to  punishment  by  fine 
for  the  violation  of  such  ordinance. 

II.  That  on  and  prior  to  the  ....  day  of ,  19.  ., 

aforesaid,  the  defendant  owned  and  had  charge  of  a  horse, 
which  said  horse  was  of  a  vicious  disposition  and  in  the 
habit  of  kicking  and  biting  people,  of  which  disposition  and 
habit  the  defendant  had  actual  notice  and  knowledge  for 
a  long  time  prior  to  said  date;  but  that  notwithstanding 
such  vicious  disposition  of  said  horse  and  the  existence  of 
said  ordinance,  the  defendant  had  been  in  the  habit  of  per- 
mitting said  horse  to  run  at  large  within  the  limits  of  said 

city,  and  that  on  the  said   ....  day  of   ,  19.  .,  said 

defendant,  in  violation  of  said  ordinance  did  wrongfully 
and  negligently  permit  said  horse  to  run  at  large  upon  the 
streets  of  said  city,  and  while  the  said  horse  was  so  running 

at  large  upon street,  one  of  the  principally  traveled 

streets  of  said  city,  and  the  plaintiff  was  lawfully  and  with 

due  care  passing  along  said street  without  knowledge 

of  the  vicious  disposition  of  said  horse,  the  said  horse  vio- 
lently kicked  the  said  plaintiff  upon  the  head,  fracturing  his 
skull,  etc.  [allege  injuries  according  to  the  fact]:  all  to  his 
damage  in  the  sum  of dollars. 

III.  [Allege  notice  of  injury,    if  necessary,   as   in  Form 
1406.] 

WHEREFORE,  etc. 

1421.    Complaint  for  injuries  suffered  from  defective 

highway. 

I.     That  at  the  times  hereinafter  mentioned  the  defend- 
ant was  and  still  is  an  organized  town  [or,  in  case  of  a  city: 

a  municipal  corporation]  in  the  county  of   in  this 

state,  and  that  at  said  times  there  existed  a  public  highway 


Chapter  LIX.]  905  [Form  1421. 

[or  street]  in  said  town  [or  city]  mucli  traveled  by  the  public, 
known  as  [gipe  name  if  it  had  one]  extending  from  [give  limits 
or  so  describe  it  as  to  identify  with  certainty]. 

II.  That  on  and  prior  to  the  ....  day  of ,  19. ., 

the  said  highway  was  insufficient  and  in  want  of  repair, 
in  this,  that  a  hole  about  two  feet  in  depth  and  four  feet 
in  length  [or  otherwise  describe  the  defect  according  to  the  fact] 
existed  in  the  travled  track  of  the  same  at  a  point  in  said 
road  [describe  place  with  reasonable  certainty  by  giving  dis- 
tance from  known  points  or  landmarks]. 

III.  That  said  hole  in  said  highway  had  existed  previous 
to  said  date  for  at  least  three  weeks,  and  was  during  all  of 
that  time  well  known  to  said  town  [or  city]  and  its  officers 
charged  with  the  duty  of  inspecting  and  repairing  highways, 
but  that  the  said  officers  wholly  failed  and  neglected  to 
repair  the  same. 

IV.  That  on  the  said    ....    day  of    ,   19..,  the 

plaintiff  was  with  due  care  traveling  in  said  highway  in  a 
two-horse  wagon,  drawn  by  two  horses,  all  the  property 
of  the  plaintiff,  in  the  night-time,  and  by  reason  of  the 
insufTiciency  and  want  of  repair  of  said  highway  at  the 
place  aforesaid  the  forewheel  of  said  wagon  ran  into  said 
hole,  and  the  plaintiff  was  thrown  out  of  his  said  wagon 
to  the  ground,  breaking  his  leg  and  bruising  and  injuring 
his  head  and  body,  by  which  injuries  he  became  sick,  sore 
and  bruised,  and  suffered  great  pain  and  distress,  and  was 
for  a  long  time  confined  to  his  bed;  and  that  in  consequence 
of  such  injuries  he  was  compelled  to  employ  physicians, 
medicines  and  nurses,  at  an  expense  of dollars. 

V.  That  by  reason  of  said  fracture  of  his  leg  the  same 
is  permanently  lamed,  and  the  plaintiff  made  a  cripple  for 
life  [or  otherwise  state  permanent  injuries  received];  and  that 
by  reason  of  said  injuries  he  was  prevented  from  attending 

to  his  business  as  a   for  the  space  of   ....   weeks, 

and  was  put  to  great  expense  and  loss;  in  all,  for  such  injuries, 
expenses,  and  losses,  to  his  damage dollars. 

VI.  [In  Wisconsin  add]:  That  on  the  ....  day  of    , 

19. .,  and  within  thirty  days  [in  case  of  a  city  or  village  the 
notice  must  be  served  within  fifteen  days]  after  the  happening 
of  said  injury  above  alleged,  the  plaintiff  caused  to  be  served 
on  L . . . .  M.  .  .  .  one  of  the  supervisors  of  said  town  [or, 
mayor  of  said  city,  or,  one  of  the  trustees  of  said  village. 


Form  1 121.]  906  [Chapter  LIX. 

according  to  the  fact]  a  notice  in  writing,  stating  therein  the 
place  where  such  damage  occurred,  substantially  as  above 
alleged,  and  describing  generally  the  insufficienciy  and  want 
of  repair  which  occasioned  the  injuries  above  alleged,  the 
injuries  received  by  the  plaintiff  and  that  satisfaction 
therefore  is  claimed  by  him  of  said  town  [of  which  said  notice 
a  copy  is  hereto  annexed,  marked  "Exhibit  A"  and  made 
a  part  of  this  complaint].     [See  Wis.  Stats.  1913  sec.  1339.] 

VII.     [//  an  action  be  against  a  town:]    That  on  the  .... 

day  of ,  19. .,  the  plaintiff  filed  with  the  town  clerk 

of  said  defendant  town  a  written  statement  of  his  claim, 
to  be  laid  before  the  town  board  of  audit  [of  which  written 
statement  a  copy  is  hereto  annexed,  marked  Exhibit  B, 
and  made  part  of  this  complaint];  and  that  on  the   .... 

day  of  ,  19..,  the  town  board  of  audit  disallowed 

said  claim  wholly;  and  on  the  first  Tuesday  of  April,  19.  ., 
and  more  than  ten  days  before  the  commencement  of  this 
action,  the  next  annual  town  meeting  of  said  town  was  held, 
and  no  action  taken  for  the  allowance  of  said  claim.  [See 
Wis.  Stats.  1913  sec.  824.] 

[In  case  the  action  be  against  a  city  under  special  charter 
requiring  the  filing  and  disallowance  of  a  claim  before  sail, 
the  allegations  should  conform  to  the  charter  requirements.] 

[In  Minnesota  insert  the  following  allegation:]   That  on  the 

....    day  of    ,   19..,   and  within  thirty  days  after 

receiving  the  injury  herein  alleged  the  plaintiff  gave  and 
presented  to  the  council  of  the  said  defendant  [or  other 
governing  body,  naming  it]  a  written  notice  of  said  injury 
and  claim  for  compensation  therefor,  stating  the  time  when, 
the  place  where,  and  the  circumstances  under  which  such 
injury  and  loss  occurred,  and  the  amount  of  compensation 
demanded  by  plaintiff  from  defendant  for  such  injury  and 
loss;  and  that,  although  more  than  ten  da^^s  have  elapsed 
since  the  presentation  of  such  notice  and  claim,  defendant 
has  not  satisfied  said  claim.  [See  Minn.  Gen.  Stats.  1913 
sec.   1786-1788.] 

[In  Iowa  the  action  must  be  brought  within  three  months 
unless  notice  of  the  time,  place  and  circumstances  of  the  injury 
be  served  on  the  municipal  corporation  within  sixty  days 
[Iowa  Ann.  Code  1897  sec.  3447  subd.  1],  in  which  case  it 
may  be  brought  within  two  years,  and  the  giving  of  the  notice 
should   be   alleged.     Robinson  v.  Cedar    Rapids,    100   Iowa, 


Chapter  LIX.]  907  [Form  1422. 

662;  69  N.  W.  1064;  Pardey  v.  Mechanicsville,  101  Iowa, 
266;  70  N.  W,  189.] 

[The  general  statutes  of  the  particular  state,  and  the  charter 
of  the  defendant  city,  if  it  be  specially  chartered,  should  be 
carefully  examined,  and  the  allegation  of  presentment  of  notice 
or  claim  should  be  made  to  conform  thereto.] 

WHEREFORE,  etc. 

1422.    Complaint  against  city  for  sidewalk  injury. 

I.  [As  in  last  preceding  form.] 

II.  That  there  was  at  the  times  hereinafter  mentioned 
a  sidewalk  maintained  by  said  city  and  greatly  used  by 
pedestrians,  upon  the side  of  said  street  and  consti- 
tuting a  part  thereof,  and  that  on  the  ....  day  of , 

19..,  and  for  more  than  three  months  prior  thereto  said 
sidewalk  was  insufTicient  and  in  want  of  repair  in  this,  that 

at  a  point  about  100  feet  east  from  the  corner  of   

street  [or  otherwise  designate  spot  with  particularity,  and  as 
designated  in  the  notice]  there  was  a  hole  in  said  sidewalk 
[describing  its  size  and  depth]. 

III.  That  said  defendant  and  its  officers  and  agents 
charged  with  the  construction  and  maintenance  of  said 
walk  had  actual  knowledge  of  the  existence  of  said  hole  at 
the  time  of  and  long  prior  to  the  happening  of  the  injury 
herein  complained  of,  and  for  such  a  length  of  time  prior 
to  said  accident  as  that  in  the  exercise  of  reasonable  dili- 
gence they  should  have  repaired  the  same. 

IV.  That  plaintiff  on  the  ....  day  of ,  19. .,  while 

passing  over  said  walk  with  due  care,  stepped  in  said  hole 
and  fell,  severely  spraining  her  ankle  and  knee,  and  pain- 
fully bruising  and  injuring  her  about  the  body  and  limbs, 
and  especially  her  back  and  spine.  That  said  injury  is 
permanent  in  character.  That  as  a  result  thereof  plaintiff 
was  confined  to  her  bed  for  ....  weeks  and  was  compelled 

to  employ  nurses  at  an  expense  of dollars,  and  that 

she  has   paid  out  for   necessary  medical   attendance  the 

sum  of   dollars,  and  that  by  reason  of  said  injury 

she  has  sustained  damages  in  the  sum  of dollars,  no 

part  of  which  has  been  paid. 

V.  [Allege  notice  and  demand,  as  in  last  preceding  form.] 
WHEREFORE,  etc. 


Forms  1 123,  1424.]  908  [Chapter  LIX. 

1423.  The  same,  another  fonn. 

I.  [As  in  Form  1421.] 

II.  That  on  the day  of ,  19. .,  the  plaintiff 

was,  in  the  exercise  of  due  care,  passing  along  said  street 

on  the  sidewalk  on  the side  thereof,  and  when  at  a 

point  [describe  the  point  with  certainty,  as  for  instance: 
immediately  in  front  of  the  house  of  one  L . . . .  M ,  . . . , 
numbered  ....  on  said  street,  and  ....  feet  east  of  the 
west  line  of  the  premises  of  said  L . . . .  M .  . . .  ]  he  fell  and 
was  greatly  injured  by  reason  of  the  insufficiency  and  want 
of  repair  of  said  sidewalk. 

III.  That  said  sidewalk  was  then  and  there  insufficient 
in  this,  that  a  board  therein  had  become  decayed  and 
rotten,  and  was  then  and  there  unsafe  and  dangerous,  and 
as  the  plaintiff,  in  the  exercise  of  due  care,  was  walking 
thereon  he  stepped  upon  said  board,  not  knowing  its  condi- 
tion, and  by  reason  of  its  decayed  condition  it  broke  through 
and  caused  him  to  fall  with  great  force,  breaking  his  ankle, 
spraining  his  knee,  and  dislocating  his  elbow  and  otherwise 
bruising  and  injuring  him  [or  otherwise  state  injuries  received]. 

IV.  That  by  reason  of  said  fall  the  plaintiff  suffered 
great  and  permanent  injuries,  was  confined  for  a  long  time 
to  his  bed,  was  rendered  sick,  sore,  lame  and  helpless, 
suffered  great  pain,  was  put  to  expense  for  medical  treat- 
ment and  attendance,  medicine  and  nursing,  kept  from 
his  business,  and  otherwise  greatly  injured,  to  his  damage 
dollars. 

V.  That,  as  the  plaintiff  is  informed  and  believes,  the 
said  city,  its  officers  and  superintendent  of  streets,  at  the 
time  of  said  injury  and  for  a  long  time  theretofore  well 
knew  of  the  insufficiency  and  want  of  repair  of  said  sidewalk 
at  the  point  where  said  injury  occurred,  and  negligently 
omitted  to  repair  the  same. 

VI.  [Allege  notice  and  claim  as  in  Form  1421.] 
WHEREFORE,  etc. 

1424.  For  injuries  resulting  from  lack  of  guard  or  rail- 

ing on  culvert. 

I.  [As  in  Form  1421.] 

II.  That  on  and  prior  to  the  ....  day  of ,  19.  ., 

the  said  highway  was  insufficient  and  in  want  of  repair  in 


Chapter  LIX.]  909  [Form  1425. 

this,  that  at  a  point  [designate  point  with  certainty]  there  was 
a  wooden  culvert  or  bridge  in  said  highway  ....  feet  in 
width  from  east  to  west,  and  ....  feet  in  length  from  north 
to  south,  and  that  at  the  south  end  of  said  culvert  or  bridge 
there  was  an  abrupt  descent  to  the  ditch  below  of  ....  feet 
with  no  guard  or  railing  of  any  kind  to  prevent  teams  or 
wagons  from  running  off  from  the  said  culvert  into  the  said 
ditch. 

III.  [Allege  knowledge  on  the  part  of  town  officers,  and  the 
happening  of  the  accident,  etc.,  substantially  as  in  allegations 
III  and  IV  of  Form  1421,  varying  same  according  to  the  facts, 
and  conclude  with  proper  allegations  of  notice  and  claim.] 

WHEREFORE,  etc. 

1425.    For  sidewalk  injury,  from  lack  of  guard  or  railing. 

I.  [As  in  Form  1421.] 

II.  That  said  highway  was  a  much  traveled  thoroughfare, 
and  that  the  sidewalk  on  the .  side  thereof  was  in  con- 
stant use  by  pedestrians. 

III.  That  on  the  ....  day  of ,  19 . . ,  and  for  a  long 

long  time  prior  thereto  said  sidewalk  at  a  point  [designate 
point  with  certainty]  was  insufTicient  and  in  want  of  repair  in 
this,  that  at  the  outer  edge  thereof  there  existed  an  abrupt 
descent  of  ....  feet  without  guard  or  rail  of  any  kind  to 
prevent  persons  using  the  same  from  inadvertently  stepping 
off  said  walk,  and  that  the  defendant  and  its  officers  had 
knowledge  of  the  said  insufficient  and  unsafe  condition  of  said 
sidewalk  for  a  long  time,  to-wit,  for  the  space  of  ....  weeks 
prior  to  the  happening  of  the  injury  hereinafter  mentioned. 

IV.  That  on  the  said  ....  day  of ,  19. .,  while  the 

plaintifT  was  with  due  care  passing  along  said  sidewalk  at  the 
place  above-named  he  was  precipitated  from  said  sidewalk, 
solely  by  reason  of  the  insufficiency  and  lack  of  a  guard- 
rail aforesaid,  and  fell  with  great  force  [allege  injuries  and 
damages  as  in  previous  forms,  and  add  allegation  of  notice 
and  claim  as  may  be  necessary  by  the  statute  or  charter]. 

WHEREFORE,  etc. 


Form  1426.1  910  [Chapter  LIX. 

1426.  Complaint  for  sidewalk  injury  caused  by  loose 
boards  (sustained  in  Barney  v.  Hartford,  73  Wis. 
95;40N.  W.  581). 

I.  [Allege  incorporation  of  city  and  existence  of  street  as 
in  Form  1421.] 

II.  That  at  the  times  hereinafter  mentioned,  and  for 

months  prior  thereto,  there  was  upon  the  south  side  of  said 
street  and  constituting  a  part  thereof  a  certain  sidewalk 
much  traveled  by  pedestrians,  consisting  of  wooden  planks 
resting  on  wooden  stringers,  and  that  on  the   ....   day  of 

,  19 . . ,  the  said  sidewalk  in  front  of  the  premises  owned 

and  occupied  by  one  H W. . . .  on  said  street  between 

street  and street,  at  a  place  about  two  rods 

west  of  the  small  gate  in  front  of  the  house  of  said  H . . . . 
W. . . .  [where  the  boards  of  said  sidewalk  are  laid  lengthwise 
east  and  west  at  right  angles  to  the  adjoining  boards  laid 
north  and  south]  was  not  in  good  nor  safe  repair,  but  was 
insufficient  and  in  want  of  repairs  in  this,  that  said  sidewalk 
at  and  about  the  place  mentioned  consisted  of  several  wooden 
planks  or  boards  laid  lengthwise  from  east  to  west  and  ad- 
joining planks  or  boards  laid  north  and  south;  that  said 
boards  or  planks  running  east  and  west  were  laid  upon 
wooden  sleepers  or  stringers,  one  at  each  end  thereof,  and  one 
near  the  middle  thereof;  that  the  inside  board  or  plank,  the 
board  there  nearest  the  fence  along  said  walk  on  the  south 
side  thereof  was  not  nailed  or  fastened  to  any  of  said 
stringers,  except  insecurely  at  the  middle  of  said  board, 
but  was  loose  at  the  ends;  that  said  board  or  plank  was  so 
short  that  it  did  not  rest,  as  to  its  ends,  upon  the  stringers 
or  sleepers,  and  was  in  nowise  fastened  at  the  ends,  and 
that  said  board  was  several  inches  from  the  ground;  that 
when  one  of  the  ends  of  said  board  was  stepped  upon  the 
other  end  was  lifted  up  several  inches  from  the  adjoining 
boards  and  from  those  running  at  right  angles  thereto  on  the 
east  end  thereof,  leaving  a  dangerous  space  and  trap  in  said 
walk;  that  said  board  was  also  warped,  and  said  end§  there- 
of were  somewhat  above  the  level  of  the  adjoining  boards; 
that  said  board  was  easily  displaced;  that  the  said  stringers 
or  sleepers  laid  to  support  said  board  were  old,  rotten,  un- 
substantial, and  insufficient,  and  would  not  hold  nails  or 
spikes,  and  that  said  board  was  decayed  at  its  ends, — which 


Chapter  LIX.]  911  [Forms  1426. 

defects  and  insufficiencies  were  of  such  a  degree  that  said 
sidewalk  at  said  place  was  unfit,  unsafe  and  dangerous  to 
travel  and  step  upon  by  persons  using  due  care. 

III.  That  the  defendant  had  knowingly  and  negligently 
permitted  and  allowed  said  sidewalk  at  said  place  to  be  and 
remain  in  the  condition  above  set  forth  for  several  months 
immediately  prior  to  and  including  the  said  ....  day  of 
,  19.  .,  an  unreasonable  length  of  time,  notwithstand- 
ing the  said  defendant  had  during  all  of  said  time  complete 
and  full  knowledge  and  notice  of  said  insufficiency  and  want 
of  repair  of  said  walk  at  said  place. 

IV.  That  on  the  evening  of  said  ....  day  of ,  19 .  . , 

the  plaintiff  was  necessarily  and  carefully  traveling  on  foot 
over  said  sidewalk,  and  unaware  of  said  defective  and  dan- 
gerous condition,  and  while  so  traveling  and  entirely  by 
reason  of  the  defects  aforesaid  was  caught  by  his  right  foot 
and  ankle,  and  was  tripped  by  said  board  at  said  defective 
part  of  said  walk,  to-wit,  the  east  end  of  said  particular  plank 
or  board,  while  said  board  and  portion  of  said  walk  were  in 
such  condition,  and  while  the  end  of  said  board  was  raised 
and  sprung  from  the  adjoining  boards  unbeknown  to  the 
plaintiff,  and  was  thereby  thrown  and  his  said  foot  and  ankle 
and  leg  were  severely  wrenched  and  bruised,  and  his  said 
ankle  severely  sprained. 

V.  That  by  reason  of  said  fall  and  injuries  the  plaintiff 
was  made  dangerously  sick,  sore,  lamed  and  crippled,  and 
was  confined  to  his  bed  for  several  months,  being  deprived  en- 
tirely of  the  use  of  his  right  leg,  and  suffering  great  pain,  and 
that  he  is  still  unable  to  walk  except  with  the  aid  of  crutches, 
and  will  for  a  long  time  be  so  unable;  that  he  was  compelled 
to  and  did  incur  a  large  expense  in  attempting  to  be  cured  of 
said  injuries  and  still  will  be  subjected  to  expense  in  properly 
treating  the  same;  that  at  the  time  of  the  accident  he  was 
enjoying  a  large,  lucrative,  and  profitable  business  as  a  den- 
tist; that  by  reason  of  said  fall  and  injuries  he  was  for  more 
than  three  months  entirely  unable  to  be  at  his  place  of  busi- 
ness or  give  it  any  attention  whatever  and  he  is  now,  and  will 
be  for  a  long  time,  unable  to  attend  properly  to  his  usual  and 
necessary  business,  and  that  he  has  sustained  and  will  con- 
tinue to  sustain,  great  pecuniary  loss  thereby;  that  he  has 
been  obliged  at  great  expense  to  hire  help  to  aid  him  in  his 
business,  so  that  the  same  would  not  be  totally  destroyed. 


Forms  1427,  1428.]  912  [Chapter  LIX. 

and  that  he  will  still  be  obliged  to  hire  such  help  for  a  long 
time  to  come;  and  thai  plaintiff's  ankle  joint  has  been  per- 
manently injured  all  to  his  damage dollars. 

I.     [Allege  giving  of  notice  and  claim,  as  in  Form  1421. \ 

WHEREFORE,  etc. 

1427.  Allegation  of  rotten  planks  and  hole  in  sidewalk 

(held  sufficient  in  Amos  v.  Fond  du  Lac,  46  Wis. 
695;  1  N.  W.  346). 

That  a  certain  portion  of  said  sidewalk  in  front  of  No 

Block  No was  defective,  insufTicient  and  in  want  of 

repair  in  this,  to-wit,  that  the  planks  forming  and  making  the 
said  portion  of  said  sidewalk  adjoining  said  lot  were  old, 
decayed  and  rotten  with  holes  and  openings  down  and 
through  the  same,  and  that  there  was  a  dangerous  hole 
downward  through  said  planks  which  hole  was  oblong  in 
shape  and  about  fourteen  inches  long  and  four  inches  wide, 
and  of  lessened  width  toward  each  end  thereof,  and  it  was 
about  ten  inches  from  the  top  of  said  plank  down  through 
said  hole  to  the  ground  below,  and  said  defendant  had  neg- 
ligently provided  no  guards,  barriers,  or  protection  to  warn 
persons  passing  over  said  sidewalk  of  its  defective  and 
dangerous  condition,  and  that  by  reason  of  the  premises 
said  walk  was  in  an  unsafe  and  insufficient  condition  for 
travel  thereon  at  the  time  hereinafter  stated,  and  for  a  long 
time  theretofore,  to-wit,  for  the  space  of  three  months, 
had  been  by  said  defendant  knowingly,  carelessly  and  negli- 
gently permitted  and  suffered  to  be  and  remain  in  such  con- 
dition. 

1428.  For  injury  on  a  sidewalk  resulting  from  accumu- 

lation of  snow  and  ice  (adapted  from  Paulson  v. 
Pelican,  79  Wis.  445;  48  N.  W.  715;  Wis.  Stats. 
1913,  sec.  1339).^ 

I.     That  at  the  times  hereinafter  mentioned  the  defendant 
was,  and  still  is,  a  duly  organized  town  in  the  county  of 

'There  is  no  liability  ordinarily  allowed  to  accumulate  in  such  an 

for  an  accident  caused  by  the  mere  uneven  and  rounded  form  that  it  is 

slippery  condition  of  the  sidev.alk  dangerous  for  a  traveler  with  due 

resulting   from    the    action    of   the  care  to  walk  thereon  there  may  be 

elements;  but  if  snow  and   inp  be  liability.       Paulson    v.     Town     of 


Chapter  LIX.]  913  ,      [Form  1428. 

state  of containing  within  its  Hmits  an  unin- 
corporated village  of  more  than  1000  people,  known  as  the 
village  of   

II.  That  at  the  time  of  the  injury  hereinafter  set  forth, 
and  for  a  long  time  prior  thereto,  there  was  in  the  said  village 

of a  street  known  as street,  which  was  one  of 

the  public  highways  of  the  defendant  town,  and  was  largely 
used  by  the  public  generally  for  travel,  by  teams  and  on  foot, 
the  center  thereof  being  used  for  travel  by  teams  and  a  por- 
tion on  the  south  side  thereof  being  so  used  by  foot  travelers. 

III.  That  on  the  ....  day  of ,  19.  .,  that  portion 

of  said street  over  which  foot  travelers  usually  and 

commonly  pass  as  aforesaid  was  in  a  dangerous  and  unsafe 
condition  for  foot  travel,  by  reason  of  snow  and  ice  having 
been  negligently  left  for  a  long  period  to-wit,  for  more  than 
three  weeks  to  accumulate  along  the  said  southerly  side  of 
said  street,  and  especially  at  a  point  [name  the  point  of  the 
accident],  which  said  accumulation  of  snow  and  ice  became 
so  uneven  and  rounded  in  form  as  to  make  travel  along  and 
over  the  said  highway  unsafe  and  dangerous;  and  that  said 
accumulation  existed  in  said  unsafe  and  dangerous  condition 
continuously  for  more  than  three  weeks  prior  to  the  happen- 
ing of  the  accident  hereinafter  described. 

IV.  That  notwithstanding  it  was  the  duty  of  the  defend- 
ant town  to  keep  said  street  at  said  point  in  a  reasonably  safe 
condition  for  travel  by  the  public,  and  notwithstanding  said 
town  and  its  officers  had  notice  of  the  said  defective  and 
unsafe  condition  of  said  street  at  the  point  aforesaid  for  a 

long  time  prior  to  the  said  ....  day  of ,  19 . .,  the  said 

defendant  and  its  officers  neglected  and  failed  to  put  said 
street  in  a  safe  condition  for  public  travel. 

V.  That  on  the  ....  day  of ,  19 . .,  at  the  hour  of 

....  o'clock  in  the  evening  of  said  day,  the  plaintiff  was  law- 
fully traveling  along  the  said   south   side  of  said    

street  on  foot,  in  a  careful  manner,  when  at  a  point  [describe 
the  point  with  certainty]  owing  to  the  aforesaid  slippery  and 
uneven  condition  of  said  street  at  that  point,  this  plaintiff 


Pelican,  79  Wis.  445;  48  N.  W.  715.      more  than  three  weeks. before  there 
In  Wisconsin  the  accumulation  of      can  be  any  liability.     Wis.   Stats, 
snow   or  ice   upon   any   bridge   or      1913  sec.  1339. 
highway    must    have    existed    for 
58 


Form  1429.]  914  [Chapter  LIX. 

slipped  and  fell  in  such  manner  that  one  of  his  legs  was 
broken  [state  other  injuries  received,  and  the  damage  resulting]. 

VI.  [Allege  the  giving  of  notices  required  by  the  statutes  of 
the  particular  state,  as  in  Form  1421.] 

WHEREFORE,  etc. 

1429.  By  administratrix  for  death  of  her  husband,  re- 
sulting from  negligent  construction  of  a  cistern 
by  the  municipality  (adapted  from  Mulcairn  v. 
Janesville,  41  Wis.  144)."' 

I.  [Allege  incorporation  and  existence  of  the  defendant 
city,  as  in  Form  1421.] 

II.  That  on  or  about  the  ....  day  of ,  19 .  .,  the 

said  defendant  city,  acting  by  its  common  council,  resolved 
and  determined  to  construct  a  certain  fire  cistern,  at  the  cor- 
ner of street  and street,  in  said  city,  and  that 

thereafter  the  said  city  entered  upon  the  construction  of  said 
cistern  and  employed  men  and  servants,  and  purchased  the 
necessary  materials  for  the  construction  thereof. 

III.  That  on  or  about  the  ....  day  of ,  19.  .,  the 

said  city  had  made  an  excavation  at  the  place  above  men- 
tioned for  the  said  cistern,  and  had  erected  within  said  exca- 
vation a  wall  along  both  sides  of  said  excavation,  and  along 
the  west  end  thereof,  and  that  on  the  said  date  no  wall  had 
been  erected  at  the  east  end  thereof;  and  that  the  said  walls 
so  erected  were  intended  to  compose  the  sides  of  said  cistern. 

That  on  the  said   ....  day  of ,  19. .,  the  said  walls 

upon  the  sides  of  said  excavation  were  about  forty  feet  in 
length,  about  ten  feet  in  height,  and  twenty  inches  in  thick- 
ness, and  the  wall  upon  the  west  end  of  said  excavation  was 
about  twelve  feet  in  length,  and  of  the  same  height  and 
thickness  as  the  other  walls;  that  said  walls  were  carelessly 
and  negligently  constructed  by  said  city,  in  this,  to-wit, 
that  the  same  were  composed  of  improper  material  and  built 

'As  this  action  is  based  on  the  of  injury,  under  Wis.  Stats.   1913 

common-law    hability    of   the   city  sec.  1339  is  necessary.    If,  however, 

for  a  negligent  act  committed  by  the     particular     city     charter     or 

its  officers  within  the  general  scope  statute   requires   a   filing   and   dis- 

of   their   powers    while    acting    for  allowance   of   claim   before    action, 

the  municipality  and  not  as  gov-  this  should  be  alleged.     Ziegler  v. 

ernmental     officers,     and     is     not  West  Bend,  102  Wis.  17;  78  N.  W. 

based  upon  the  statutory  liability  164. 
for   a   defective   street,    no   notice 


Chapter  LIX.]  915  [Form  1429. 

in  a  careless  and  negligent  manner  without  proper  foundation 
or  fooling,  resting  upon  the  sand  and  gravel  upon  the  bottom 
of  said  excavation,  and  further  that  there  was  a  space  be- 
tween the  outer  sides  of  said  walls  and  the  sides  of  said 
excavation,  which  had  been  filled  with  loose  sand  and  gravel 
and  dirt,  the  weight  of  which  rested  against  said  walls,  and 
that  said  walls  had  no  props  or  braees  to  prevent  them  from 
falling  inwards;  all  of  which  facts  were  well  known  to  the 

said  city  and  its  officers  upon  the  said day  of , 

19..,  notwithstanding  which  knowledge,  neither  the  said 
city  nor'  its  officers  took  any  means  to  prevent  the  said 
walls  from  falling. 

IV.  That  on  the  said  ....  day  of ,  19 . . ,  one  L 

M . . . .  was  employed  by  the  said  defendant  city  as  a  servant 
to  do  certain  work  in  and  about  said  excavation,  and  about 
said  walls,  and  that  the  said  L . . . .  M . . . .  was  at  that  time 
ignorant  of  the  defective  and  negligent  construction  of  said 
walls  as  aforesaid,  and  while  the  said  L . . . .  M . . . .  was  so 
employed  and  engaged  in  said  excavation,  under  the  direc- 
tion of  the  defendant  and  in  the  exercise  of  due  care,  that 
portion  of  the  north  wall  of  said  cistern,  by  reason  of  the 
negligent  construction  thereof  and  the  failure  to  provide 
braces  or  props  for  the  same,  and  by  reason  of  the  weight 
and  pressure  of  the  loose  sand  and  gravel  on  the  outside  of 
said  wall  as  aforesaid,  fell  inwards  into  the  said  excavation 
and  upon  the  said  L.  . .  .  M . . . .,  fatally  injuring  him  so  that 

he  died  as  the  result  of  said  injuries  on  the  ....  day  of , 

19.. 

V.  That  at  the  time  of  the  death  of  the  said  L . . . .  M 

as  above  set  forth,  he  was,  and  for  a  long  time  had  been  a 
married  man,  and  left  surviving  him  this  plaintiff,  his  widow, 
and  the  following  named  children  [name  children  and  give 
their  ages],  all  of  whom  were  dependent  upon  the  said  L . . . . 
M . . . .   for  support. 

VI.  That  on  the  ....  day  of ,  19 . . ,  upon  petition 

duly  made  to  the court  of county,  this  plaintiff 

was  duly  appointed  administratrix  of  the  estate  of  said  L . . . . 
M . . . .,  and  that  thereafter  and  before  the  commencement  of 
this  action,  she  duly  qualified  and  is  now  acting  as  such 
administratrix. 

VII.  [Allege  notice,,  if  any  is  required,  as  in  Form  1406.] 
WHEREFORE,  etc. 


Forms  1430,  1431.]  916  [Chapter  LIX. 

1430.  Complaint  for  trespass  by  city  officers  while  abat- 

ing an  alleged  public  nuisance  (adapted  from 
Hamilton  v.  Fond  du  Lac,  40  Wis.  47). « 

I.  [Allege  incorporalion  and  existence  of  the  defendant  city, 
as  in  Form  1421.] 

II.  That  on  the day  of ,  19 .  . ,  and  upon  sun- 
dry other  days  and  times  of  day,  and  before  the  commence- 
ment of  this  action,  the  defendant  unlawfully  entered  upon 
the  lands  and  premises  of  the  plaintiff,  lying  and  being  in  the 

said  city  of    described  as  follows  [give  description] 

and  dug  up  and  carried  away  ....  thousand  cubic  feet  of 
earth,  and  thereby  destroyed  about  ....  surface  square  feet 
of  said  lot,  to  the  damage  of  the  plaintiff dollars. 

WHEREFORE,  etc. 

1431.  For  negligently  leaving  a  dangerous  structure  in 

the  street  (adapted  from  Hughes  v.  Fond  du 
Lac,  73  Wis.  380;  41  N.  W.  407). « 

I.  [Allege  incorporation  of  the  defendant  city  and  the  ex- 
istence of  the  street  in  question,  as  in  Form  1421.] 

II.  That  the  said  street  was  at  the  times  hereinafter 
mentioned,  and  still  is,  largely  used  by  the  citizens  of  the 
said  city  for  public  travel. 

III.  That  on  the  ....  day  of ,  19. .,  and  for  some 

years  prior  thereto,  the  defendant  city  owned,  used  and  con- 
trolled a  large  iron'  and  wooden  roller  weighing  several  tons, 
and  about  6  feet  high  and  10  feet  wide,  used  by  the  said  de- 
fendant for  the  purpose  of  pressing  and  making  more  com- 
pact the  various  streets  of  said  city,  which  said  roller  was  and 
is  an  ungainly  and  unsightly  object,  and  naturally  calculated 
to  frighten  horses. 

IV.  That  on  the  ....  day  of ,  19.  .,  and  for  some 

weeks  prior  thereto,  the  said  roller  was  left  by  the  said  city 
and  its  officers  at  a  point  on  the  ....  side  of  said 

*  See  note  to  Form  1429.     The  providing      for      the      abatement 

case    from    which    this    form    was  thereof,     and    excavating    a    new 

taken  was  a  case  where  the  city,  channel  across  the  plaintiff's  prem- 

acting  under  its  charter  powers  to  ises. 

abate    nuisances,    passed    an    ordi-  ^  This  action  is  also  based  upon 

nance    declaring    a    portion    of    a  the    common    law    liability.      See 

small    river   within    the    city    lim-  notes  to  Forms  1429  and  1430. 
its   to   be   a   pul)lic   nuisance,    and 


Chapler  LIX.]  917  ^  [Form  1432. 

street  in  said  city,  about  feet  west  from  the  inter- 
section of  said  street  with  Main  street,  and  about  ....  feet 
from  the  north  side  of  the  sidewalk  on  the  south  side  of  said 

street,   one  wheel  of  said   roller  being  within  the 

south  road  track  of  said  street;  and  the  said  roller  thus  un- 
lawfully occupied  and  obstructed  about  one-third  of  said 
street,  making  the  same  dangerous  and  unsafe  for  travel; 
and  that  the  defendant  had  knowledge  of  the  situation  of 
said  roller  for  several  weeks  prior  to  the  accident  hereinafter 
mentioned. 

V.     That  on  the  ....  day  of ,  19 .  . ,  at  about  .... 

o'clock  in  the  evening  of  said  day,  the  plaintiff  was  driving  a 

single  horse  and  carriage  west  upon  said street,  with 

due  care,  and  when  he  came  to  the  point  where  said  roller 
was  situated  as  aforesaid,  his  horse  became  frightened  and 
unmanageable  at  said  roller,  and  escaped  from  the  plaintiff's 
control,  and  ran  away,  partially  overturning  the  carriage 
and  throwing  the  plaintiff  upon  the  ground  with  great  vio- 
lence, thereby  seriously  injuring  him  [state  injuries],  to  the 
damage  of  the  plaintiff dollars. 

WHEREFORE,  etc. 

1432.  Against  municipality  for  building  a  street  so  as 
to  dam  up  a  river  and  flow  the  plaintiff's  prem- 
ises (adapted  from  Spellman  v.  Portage,  41  Wis. 
144). 

I.  [Allege  incorporation  and  existence  of  defendant  city,  as 
in  Form  1421.] 

II.  That  the  said  city  has,  by  virtue  of  its  charter,  the 
care  and  control  of  all  its  streets  within  the  corporate  limits 
of  said  city  and  the  right  and  duty  to  build  and  grade  the 
same,  and  that  the  defendant,  by  its  agents  and  servants,  in 
the  year  19 .  . ,  graded  and  built  a  raised  highway  in  said 
city  and  still  maintains  the  same,  leading  from  the  bridge 

across  the river,  southwesterly  to  the  limits  of  said 

city,  a  distance  of  about  one  mile. 

III.  That  in  building  and  making  said  highway  the  said 
city  raised  the  grade  thereof  above  the  level  of  the  surface  of 
the  surrounding  ground  about  4  feet,  and  that  the  said 
street  is  built  upon  and  across  a  large  flat  tract  of  marsh 
land  dividing  the  Wisconsin  and  Baraboo  rivers,  over  a  large 


Form  1433.]  918  [Chapter  LIX. 

part  of  which  tract  of  land  water  runs  from  the  Wisconsin 
to  the  Baraboo  River  at  every  stage  of  high  water,  which  is 
very  frequent;  that  in  constructing  the  said  road,  the  same 
ought  to  have  been  so  constructed  that  the  water  could  pass 
through  said  road  without  obstruction,  and  for  that  purpose 
said  road  should  have  been  supplied  with  sufficient  sluices 
and  culverts  at  short  intervals  for  the  passage  of  said  water 
over  said  flat  tract  of  land  from  the  Wisconsin  River  to  the 
Baraboo  River,  as  has  been  the  usual  and  accustomed  course 
of  said  water  from  time  immemorial;  but  that  the  said  de- 
fendant, disregarding  its  said  duty,  by  its  agents  and  ser- 
vants, negligently  built  and  constructed  the  said  graded 
road  without  providing  the  same  with  culverts,  bridges  and 
sewers  so  as  to  enable  the  waters  of  said  Wisconsin  River 
to  pass  through  and  flow  in  the  natural  and  accustomed 
course  into  the  Baraboo  River,  and  that  on  account  of  the 
said  negligent  and  unskillful  construction  of  the  said  road 
said  waters  of  the  Wisconsin  River,  at  high  water,  during 

the  month  of ,  19 . .,  were  obstructed  by  the  said  road 

and  grade,  and  were  caused  to  flow  back  upon  and  submerge 
lots  [describe  property],  which  lots  were  then  owned  and 
occupied  by  the  plaintiff,  and  to  submerge,  drown,  injure  and 
destroy  the  crops  thereon,  the  property  of  the  plaintiff;  all 

to  his  damage  in  the  sum  of dollars. 

WHEREFORE,  etc. 

1433.  By  passenger  against  railway  company,  for  in- 
juries resulting  from  negligent  collision  of 
trains. 

I.  That  the  defendant  is  and  was  at  the  times  hereinafter 
named  a  railroad  corporation  duly  organized  under  the  laws 

of  the  state  of and  operating  a  commercial  railroad 

between  the  city  of and  the  city  of in  said 

state,  carrying  passengers  and  freight  thereon  for  hire. 

II.  That  on  the   . . .   day  of ,  19.  .,  the  plaintiff 

purchased  from  the  defendant  a  ticket  entitling  him  to  safe 

transportation  on  defendant's  said  railroad  from to 

and  thereupon  boarded  one  of  defendant's  trains,  and 

was  received  as  a  passenger  thereon. 

III.  That  while  the  plaintiff  was  upon  said  train  on  said 
....  day  of 19. .,  and  was  being  transported  as  a  pas- 


Chapter  LIX.]  919  [Forms  1434,  1435. 

senger  thereon,  said  train  was  so  negligently  and  carelessly 
operated  and  managed  by  the  defendant  and  its  servants  in 
control  thereof*  that  the  same  violently  collided  with  another 

train  of  the  defendant  at whereby  the  car  in  which 

the  plaintiff  was  riding  was  thrown  from  the  track  and  upset, 
and  the  plaintifT  was  violently  thrown  from  his  seat,  and  his 
right  leg  fractured  and  his  head  and  chest  bruised,  by  reason 
of  which  injuries  he  was  for  a  long  time  sick  and  confined  to 
his  bed  and  rendered  permanently  lame  in  said  leg,  and  was 

also  prevented  from  attending  to  his  business  as  a   

for  the  space  of   ....  weeks,  and  compelled  to  expend  for 

medical  services  and  nursing  the  sum  of dollars,  all 

to  his  damage  in  the  sum  of dollars. 

IV.  [//  by  local  statute  notice  or  filing  of  claim  is  necessary 
before  action  allege  the  giving  of  same.  See  Form  1406  and 
note.] 

WHEREFORE,  etc. 

1434.  The  same,  where  passenger  jumped  from  train  to 

avoid  injury  from  collision. 

[As  in  last  preceding  form  to  the  *  and  continuing]:  that  a 
violent  collision  was  imminent,  and  did  in  fact  actually  occur, 
with  another  train  of  the  defendant  upon  its  said  track  at 

and  that  by  reason  of  the  imminence  of  such  collision 

there  was  great  danger  that  the  plaintiff  would  be  severely 
injured  or  killed  if  he  remained  upon  the  said  train;  and  that 
in  order  to  escape  such  danger  and  save  his  life  this  plaintifT, 
just  prior  to  the  moment  of  such  coUision  was  compelled  to 
and  did  jump  from  his  said  train  to  the  ground,  and  in  so 
doing  broke  his  leg  and  [state  other  injuries  received,  and 
damage,  according  to  the  fact]. 

IV.     [Allege  notice,  if  necessary,  as  in  Form  1406,] 

WHEREFORE,  etc. 

1435.  By  passenger  for  injuries  sustained  by  defects  in 

station  platform. 

I  and  II.     [As  in  Form  1433.] 

III.     That  at  the  station  of  said  defendant,  at  said  city  of 

there  was  maintained  by  said  company  a  wooden 

platform  adjacent  to  the  railroad  of  said  defendant,  for  the 
accommodation  of  its  passengers,  and  at  which  the  trains  of 


Form  1436.]  920  [Chapter  LIX. 

said  company  stopped  for  the  purpose  of  receiving  and  dis- 
charging passengers,  which  said  platform  was  insufficient  and 
dangerous  in  this  [state  defect  particularly,  as:  that  there  was  a 
deep  hole  therein,  stating  size  and  location];  and  that  the 
plaintiff,  while  alighting  from  said  train  on  said  platform  in 
the  night-time,  without  fault  on  his  part,  inadvertently 
stepped  into  said  hole,  throwing  him  to  the  ground  and  break- 
ing his  leg  [or  otherwise  state  the  injuries  received  and  the 
damages.] 

IV.  [Add  allegation  of  giving  notice,  if  necessary,  as  in 
Form  1406.] 

WHEREFORE,  etc. 

1436.    By  passenger,  for  injuries  from  derailing  of  train 
by    collision   with    cattle    straying    on    track 
through  defective  fence. 
I  and  II.     [As  in  Form  1433.] 

III.  That  said  defendant  was  required  by  law  at  that 
time,  to  erect  and  maintain,  on  both  sides  of  its  track,  good 
and  sujfficient  fences  of  the  height  of  four  and  a  half  feet  along 
its  said  road  [or  describe  the  fence  prescribed  by  the  particular 
statute],  but  that  said  defendant  failed  and  neglected  to  keep 
up  and  maintain  said  fences,  and  negligently  and  knowingly 
allowed  and  suffered  the  same  to  be  insufficient  and  out  of 
repair. 

IV.  That  by  reason  of  such  insufficiency  and  want  of 
repair  a  number  of  cattle  depasturing  on  the  lands  of  one 

A. .  . .  B. . . .,  adjoining  said  track,  in  the  town  of , 

county  of escaped  through  said  defective  fence  upon 

said  track,  and  that  the  defendant  so  negligently  and  un- 
skillfully  ran  and  operated  said  train  by  its  agents,  conduc- 
tor and  engineer  in  charge  of  the  same,  that  the  said  train  on 
the  day  aforesaid  ran  into  and  against  said  cattle,  and  there- 
by the  car  in  which  plaintiff  was  riding  was  derailed  and  up- 
set, and  thereby  the  said  plaintiff  received  severe  injuries, 
his  shoulder  was  broken,  his  spine  injured,  his  skull  frac- 
tured, and  other  bruises  and  injuries  sustained,  whereby  he 
was  made  sick,  sore,  lame  and  disabled,  and  for  a  long  time 
confined  to  his  bed  and  helpless,  and  rendered  permanently 
a  cripple  [or  otherwise  describe  injuries  according  to  the  fact.] 

V.  [Allege  notice,  if  required,  as  in  Form  1406.] 
WHEREFORE,  ^c 


Chapter  LIX.]  921  [Forms  1437,  143S. 

1437.  By  passenger  for  forcible  ejection  from  train, 

I  and  11.     [As  in  Form  1433.] 

III.  That  the  defendant,  by  its  officers  and  servants  in 
charge  of  said  train,  at  a  point  on  the  hne  of  its  said  railroad, 

about  ....  miles  east  from  the  station  of [the  same 

not  being  a  usual  stopping  place  nor  near  any  dwelling 
house]^''  unlawfully  and  with  force  and  violence  ejected  the 
plaintiff  from  said  train  and  refused  to  permit  him  to  ride 
further  thereon. 

IV.  That  by  reason  of  said  ejection,  and  the  violence  so 
used  by  defendant's  servants,  the  plaintiff  was  severely 
bruised  about  the  face  and  body  and  suffered  great  pain  of 
body  and  humiliation,  and  was  delayed  in  his  business;  all 
to  his  damage  in  the  sum  of dollars. 

V.  [Allege  notice,  if  necessary,  as  inform  1406.] 
WHEREFORE,  etc. 

1438.  By  husband  for  injuries  to  wife  while  a  passenger. 

[After  alleging  that  plaintiff  is  the  husband  of  the  injured 
person,  follow  preceding  forms  in  statement  of  the  incorpora- 
tion of  the  defendant,  its  business  as  a  carrier,  the  purchase  of 
a  ticket,  the  transportation  of  the  injured  person,  the  negligence 
of  the  company,  and  the  resulting  injuries,  with  necessary 
changes  of  verbiage  to  show  that  the  plaintiff's  wife  was  the 
injured  person,  and  continue]: 

V.  That  by  reason  of  the  premises  the  plaintiff  has  been 
put  to  great  expense,  and  will  continue  to  be  subjected  to 
great  expense  in  procuring  necessary  medical  and  surgical 
attendance,  care  and  suitable  nursing  for  his  said  wife,  and 
has  been  and  will  be  hereafter  put  to  great  loss  and  expense 
in  money  by  the  loss  of  her  services,  by  reason  of  her  per- 
manent injuries  and  physical  disabilities  caused  by  such  in- 
juries, and  has  lost  the  comfort  of  the  society  and  health  of 
his  said  wife,  in  all  to  his  damage dollars. 

"This    clause    is    not    essential  412;  54  N.  W.  1092.    Hence,  if  the 

where  the  passenger  has  a  ticket,  ejection    was    not    at    one    of    the 

or  has  paid   his  fare  or  offers  to  named  places,  it  is  well  in  Wisconsin 

pay  it.     The  statute  of  Wisconsin  to  allege  the  fact,  so  that  even  if 

prohibits  the  ejection  of  a  passen-  defendant   should   prove   that   the 

ger   at   any   place   except   a   usual  plaintiff   refused   to   pay   his   fare, 

stopping  place,  or  near  a  dwelling  there  might  still  be  a  recovery  on 

house.    Wis.  Stats.  1913  sec.  1818;  account  of  the  ejection  at  a  place 

Phettiplace  v.  N.  P.  R.  R.,  84  Wis.  unauthorized  by  law. 


Form  1 139.]  922  [Chapter  LIX. 

VI.     [A  liege  notice,  if  necessary,  as  in  Form  1406.] 
WHEREFORE,  etc. 

1439.  By  employee  against  railroad  company  for  injuries 
resulting  from  negligent  construction  and  in- 
spection of  track  (adapted  from  Grouse  v.  R.  R. 
Co.,  102  Wis.  196;  78  N.  W.  446,  778). 

I.  [As  in  Form  1433.] 

II.  That  the  plaintiff,  on  and  prior  to  the day  of 

,  19. .,  was  an  employee  of  said  defendant  as  an  en- 

giner,  running  a  freight  train  from  the  city  of to  the 

city  of and  on  said  last  named  day  was  operating  a 

locomotive  engine  for  defendant  in  hauling  a  train  from 
to 

III.  That  while  so  operating  said  engine  and  train,  with 
due  care,  and  at  about  the  hour  of  11:30  o'clock  in  the  even- 
ing of  said  day,  the  plaintiff  with  his  said  train  arrived  at  a 

point  about  one  and  one-half  miles  north  of  the  city  of 

and  ran  into  a  washout  or  hole  in  the  defendant's  said  track, 
derailing  said  train  and  greatly  injuring  the  plaintiff  as 
hereinafter  set  forth. 

IV.  That  at  the  place  where  said  washout  occurred  the 

defendant   had    prior   to    said    ....    day  of    ,   19.., 

constructed  under  its  said  track  a  small  wooden  culvert  for 
the  passage  of  water  under  its  track,  and  that  said  culvert 
was  too  small  for  the  purpose  for  which  it  was  intended,  was 
improperly  located,  and  that  defendant  had  prior  to  said 
date  carelessly  and  negligently  excavated  and  removed  large 
quantities  of  gravel  from  the  immediate  vicinity  of  said  cul- 
vert, thereby  greatly  weakening  the  same  and  the  track  of 
the  defendant  at  that  point,  and  leaving  the  said  culvert 
and  roadbed  insufTicient  and  defective,  and  liable  to  be 
washed  out,  all  of  which  defects  and  insufficiencies  were 
known  to  the  defendant  and  its  servants  in  charge  of  said 
roadbed,  but  unknown  to  the  plaintiff. 

V.  That  on  the  evening  aforesaid  a  heavy  rain  com- 
menced to  fall  at  the  point  of  said  washout  and  in  the  sur- 
rounding country,  and  continued  for  a  number  of  hours  prior 
to  the  time  when  plaintiff's  said  train  arrived  at  said  point, 
and  that  both  defendant's  section  foreman,  whose  duty  it  was 
to  inspect  the  defendant's  track  at  that  point,  and  defend- 


Chapter  LIX.]  923  [Fonii  1440. 

ant's  roadmaster,  whose  duty  it  was  to  inspect  said  track 
and  the  culverts  therein  and  their  supports,  and  repair  the 
same,  negligently  failed  and  neglected  to  inspect  said  track 
and  culvert  on  said  night,  and  failed  to  warn  the  plaintiff 
and  the  trainmen  upon  said  train  of  said  washout,  and  said 
roadmaster  prior  to  the  evening  aforesaid  negligently  allowed 
and  directed  the  servants  of  said  company  to  excavate  the 
earth  and  gravel  near  said  culvert  and  track,  thereby  greatly, 
weakening  the  same,  and  making  the  same  unsafe  and  dan- 
gerous for  the  passage  of  trains,  all  of  which  facts  were  un- 
known to  the  plaintiff. 

VI.  That  by  reason  of  the  said  defective,  improper  and 
inadequate  construction  of  said  culvert  and  track,  and  the 
negligent  excavation  of  gravel  about  the  same  the  said 
culvert  and  track  were  washed  out  for  a  considerable  dis- 
tance on  the  evening  aforesaid,  by  the  water  accumulating 
from  said  rain,  which  fact  was  unknown  to  the  plaintiff  and 
could  not  have  been  ascertained  by  the  plaintiff  in  the  exer- 
cise of  reasonable  care,  and  ?olely  by  reason  of  the  said 
washout  so  negligently  caused,  and  the  failure  of  defendant 
servant  in  charge  of  said  track  and  culvert  to  inspect  the 
same  and  warn  the  plaintiff  of  said  washout,  the  said  train 
was  precipitated  into  said  hole  or  washout,  and  the  plain- 
tiff was  thrown  from  his  engine  and  suffered  great  bodily 
injuries    [state   injuries  particularly]. 

VII.  [Allege  notice  of  injury,  if  required,  as  inform  1406.] 
WHEREFORE,  etc. 

1440.  By  employee  for  injury  from  defective  track  (sus- 
tained in  Lyman  v.  C.  V.  R.  R.,  59  Vt.  167;  10  A. 
346). 

I.  [As  in  Form  1433.] 

II.  That  at  the  times  hereinafter  mentioned  plaintiff  was 
employed  by  defendant  as  master  and  tender  of  the  draw- 
bridge at forming  a  part  of  defendant's  said  road,  and 

as  such  employee,  in  discharge  of  his  duty,  frequently  passed 
over  said  road  upon  defendant's  locomotives  and  cars  from 
to 

III.  That  it  became  and  was  the  duty  of  the  defendant  to 
provide  a  suitable,  safe  and  sufficient  roadbed  and  track,  and 
to  use  due  and  proper  skill,  care  and  diligence  in  providing  a 


Form  1441.]  924  [Chapter  LIX. 

suitable,  safe  and  sufficient  roadway  for  the  passage  of  said 
locomotives  and  cars  to  and  fro  over  said  raih'oad. 

IV.  That  the  said  defendant,  disregarding  and  neglecting 
its  duty  aforesaid,  did  not  then  and  there  provide  a  suitable, 
safe  and  sufficient  roadbed  and  track  for  the  passage  of  said 
locomotives  and  cars  to  and  fro  over  said  railroad;  but,  on  the 
contrary  thereof,  did  negligently  and  carelessly  provide  a 
roadbed  and  track  which  was  insufficient,  unsuitable  and 
unsafe  for  the  passage  of  locomotives  and  cars  over  the  same, 
whereby  and  by  means  of  the  unsuitable,  insufficient  and 
unsafe  condition  of  said  roadbed  and  track,  and  on  or  about 

the   ....  day  of ,  19. .,  a  certain  locomotive  of  the 

defendant,  whereon  said  plaintiff  was  then  and  there  riding 
for  the  purpose  of  being  able  to  attend  to  his  duties  at  said 
drawbridge  without  delay,  when  the  same  should  be  reached 
by  said  locomotive,  according  to  the  course  of  his  said  em- 
ployment and  in  pursuance  of  his  duties  therein,  was  thrown 
from  the  track  and  thrown  down  the  embankment  of  said 
railroad. 

V.  [Allege  injuries  and  damage,  and  service  of  notice  of 
injury,    if  required.] 

WHEREFORE,  etc. 

1441.    By  employee  for  injuries  by  collision. 

I  and  11.     [As  in  Form  1439.] 

III.  That  it  was  a  part  of  plaintifT's  duty  as  such  engineer, 
by  reason  of  express  regulations  and  directions  given  to 
plaintiff  by  the  defendant,  to  stop  his  said  train  each  day  at 

*.  and  there  pass  a  certain  other  locomotive  and  train 

upon  defendant's  railroad  which  ran  from to 

IV.  That  the  defendant,   on  the    ....    day  of    , 

19 .  . ,  changed  the  place  of  meeting  of  said  trains  from 

to ,  said  change  to  take  effect  on  the  ensuing  day,  to- 

wit,  on  the   ....   day  of   ,  19.  .,  without  giving  the 

plaintiff  notice  of  said  change,  by  reason  of  which  change, 
while  the  plaintiff  was  proceeding  in  the  capacity  of  engineer 
of  said  locomotive,  with  the  train  thereto  attached,  from 

to on  the  ....  day  of ,  19 .  . ,  according 

to  the  previous  express  direction  of  said  defendant,  and  while 

between and on  said  railroad,  the  plaintiff's 

train  and  said  other  train,  with  their  locomotives,  came  into 


Chapter  LIX.]  ^       925  [Form  1442. 

collision  without  fault  on  the  part  of  the  plaintiff,  and  the 
plaintiff  was  severely  injured   [state  injuries], 

V.     [Allege  notice,  if  necessary.] 

WHEREFORE,  etc. 

1442.  By  brakeman  against  corporation  operating  a  log- 
ging railroad,  alleging  defective  equipment  and 
track  (adapted  from  Haley  v.  Jump  River  L. 
Co.,  81  Wis.  412;  51  N.  W.  321,  956). 

I.     That  at  the  times  hereinafter  mentioned  the  defend- 
ant was  and  still  is  a  corporation  organized  under  the  laws 

of  the  state  of and  was  operating  a  logging  railroad 

in  the  county  of in  said  state  running  from to 


II.  That  on  and  prior  to  the  ....  day  of ,  19. ., 

the  plaintiff  was  an  employee  of  said  defendant  as  a  brake- 
man  on  defendant's  trains  on  said  logging  railroad,  and  on 
said  last  named  day  was  riding  upon  one  of  the  logging  trains 
of  said  defendant  drawn  by  a  locomotive  engine  over  said 
logging  railroad,  engaged  in  the  performance  of  his  duties  as 
brakeman  aforesaid. 

III.  That  the  said  defendant,  on  and  prior  to  the  date 
aforesaid,  negligently  failed  to  provide  a  safe  and  suitable 
roadbed  for  the  track  of  said  logging  railroad,  in  that  the 
same  was  very  rough  and  uneven  and  allowed  so  to  remain, 
and  negligently  failed  to  provide  for  any  suitable  or  safe 
place  upon  its  logging  cars  for  the  plaintiff  to  perform  his 
duties  as  brakeman,  and  failed  to  provide  suitable  and  safe 
appliances  for  fastening  the  logs  upon  its  cars,  and  did  not 
provide  chains  of  sufTicient  strength  for  such  purpose,  but 
did  provide  certain  weak,  broken  and  patched  chains  totally 
insufTicient  and  unsuitable  for  such  purpose;  and  that  for 
about  ten  days  before  said  date  the  defendant  negligently 
allowed  several  large  logs  to  remain  on  said  roadbed  parallel 
with  said  track  and  so  close  thereto  as  to  be  an  obstruction  to 
cars  loaded  with  logs  thereon. 

IV.  That  on  said  ....  day  of ,  19. .,  said  defend- 
ant was  operating  said  railroad  by  its  servants  and  agents, 
and  transporting  over  the  same  said  train  composed  of  a 
number  of  cars,  drawn  by  said  locomotive  engine,  and  that 
said  cars  were  heavily  loaded  with  logs,  and  that  each  load 


Form  1443.]  926  [Chapter  LIX. 

was  negligently  and  carelessly  fastened  upon  the  car  upon 
which  it  rested  by  means  of  one  of  said  weak,  small,  improper, 
and  unsuitable  chains;  that  this  plaintiff,  acting  as  the  agent 
and  servant  of  said  defendant,  and  in  the  lawful  and  proper 
performance  of  his  duty,  was  riding  upon  said  train,  and  was 
standing  at  one  of  the  brakes  upon  said  cars;  that  while  so 
riding  as  such  agent  and  servant,  and  while  so  lawfully 
performing  his  said  duty,  and  when  said  train  was  running 
over  said  railroad,  and  at  a  point  about  a  mile  and  a  half 

distant  from  the  village  of in  said   county, 

one  of  said  loaded  cars  in  front  of  the  car  upon  which  this 
plaintiff  was  so  lawfully  standing  came  in  contact  with  one 
of  the  said  logs  so  negligently  allowed  to  remain  alongside 
said  railroad  track,  as  aforesaid,  the  chain  which  bound  the 
logs  upon  said  car  gave  way  and  broke,  and  the  said  logs, 
which  were  bound  by  said  chain  to  said  car,  fell,  or  partly 
fell,  from  the  said  car  upon  which  they  were  loaded,  and  some 
of  them  falling  with  their  front  ends  to  the  ground,  or  against 
said  logs  so  negligently  allowed  to  remain  along-side  said 
track,  caused  the  logs  upon  the  car  upon  which  this  plaintiff 
was  standing  to  be  thrown  back  upon  him,  so  that  this 
plaintiff  was  caught  between  two  of  said  car-loads  of  logs, 
and  by  reason  of  the  negligence  of  said  defendant  in  so  fail- 
ing to  provide  suitable  and  proper  chains  to  bind  the  logs 
upon  said  cars,  and  in  so  failing  to  keep  its  said  roadbed  in 
proper  condition  and  free  from  obstruction,  and  with  no 
want  of  care  on  his  part,  this  plaintiff  sustained  the  injuries 
hereinafter  mentioned. 

V  and  VI.  [State  injuries  received  and  damage,  and  service 
of  notice,  if  required,  as  inform  1406.] 

WHEREFORE,  etc. 

1443.  Brakeman  against  railway  company  for  injuries 
resulting  from  negligent  condition  of  roadbed 
(adapted  from  Hulihan  v.  G.  B.  W.  &  St.  P.  Ry. 
Co.,  58  Wis.  319;  17  N.W.  17). 

I.  [As  in  Form  1433.] 

II.  That  the  plaintiff,  on  and  prior  to  the  ....  day  of 
19. .,  was  in  the  employ  of  the  defendant  as  brake- 
man  upon  one  of  its  freight  trains,  and  that  his  duty  as  such 
required  him  to  go  between  freight  and  other  cars  for  the 


Chapter  LIX.]  927  [Form  1443. 

purpose  of  coupling  and  uncoupling  the  same,  using  the 
appliances  therefor  provided  by  the  defendant,  and  that  it 
was  the  duty  of  the  defendant  to  provide  safe  and  suitable 
appliances  therefor,  and  to  keep  its  track  in  repair  and  free 
from  obstructions,  as  well  along  the  side  of  the  track  as 
within  it,  so  as  not  unnecessarily  to  expose  its  employees  to 
the  danger  of  personal  injuries. 

III.  That  notwithstanding  the  said  duty  of  the  defend- 
ant, the  defendant  did,  on  or  about  the  ....  day  of , 

19. .,  and  for  a  long  time  prior  thereto,  carelessly  and  neg- 
ligently suffer  and  allow  loose  blocks  of  firewood  and  the 
like  to  lie  scattered  about  near  its  track  and  along  the  road- 
bed near  a  station  on  said  road  called ,  upon  the  sta- 
tion grounds  on  the  west  side  of  the  said  station  of , 

at  a  point  where  the  said  plaintiff  and  other  brakemen  were 
obliged,  in  performing  their  duties,  to  run  along  the  side  of 
said  track  and  couple  and  uncouple  cars,  thereby  rendering 
the  performance  of  the  plaintiff's  duties  unnecessarily  dan- 
gerous to  the  plaintiff. 

IV.  That  on  or  about  said  ....  day  of ,  19. .,  and 

at  or  near  the  said  place  or  station  called ,  while  the 

said  plaintiff  was  in  the  employ  of  said  defendant,  as  afore- 
said, it  became  the  duty  of  said  plaintiff,  as  brakeman,  and 
necessary  that  he  should  go  quickly  between  a  box  car  and  a 
flat  car  to  make  a  coupling,  so  called, — that  is,  to  couple  the 
box  car  which  was  being  pushed  towards  the  flat  car  which 
was  standing  to  the  flat  car;  that  said  plaintiff  attempted  to 
do  so,  as  he  was  in  duty  bound  to  do,  when  his  toe  or  foot 
struck  against  one  of  the  said  pieces  or  blocks  of  wood  or 
flre-wood,  without  any  negligence  or  carelessness  on  his  part, 
but  wholly  through  the  shiftlessness  and  carelessness  of  the 
said  defendant,  as  hereinbefore  set  forth,  and  said  plaintiff 
was  thrown  with  great  force  head-first  in  between  said  cars, 
and  to  save  himself  from  being  cut  in  two  he  caught  hold  of 
the  draw-bar  of  the  flat  car  at  the  same  time  as  the  draw- 
bar of  the  box  or  moving  car  came  in  collision  with  it  smash- 
ing two  fingers  of  the  left  hand  of  said  plaintiff,  and  perma- 
nently and  for  life  maiming  and  crippling  a  third  finger,  so 
that  two  fingers  had  to  be  cut  off  entirely,  and  the  third 
left  comparatively  useless;  that  said  accident  was  caused 
wholly  by  the  shiftlessness  and  carelessness  of  said  defendant 
in  allowing  its  said  track,  and  the  margins  thereof,  to  be 


Form  1444.]  928  [Chapter  LIX. 

incumbered  and  obstructed  by  the  said  loose  blocks  of  wood, 
and  without  any  fault  whatever  on  the  part  of  said  plain  iff. 

V.     [Allege  service  of  notice,  if  required.] 

WHEREFORE,  etc. 

1444.  By  conductor  of  freight  train  for  injuries  from 
cattle  chute  dangerously  near  the  track  (adapted 
from  Dorsey  v.  Philips  &  Colby  Construction  Co., 
42  Wis.  583). 

I.  [As  in  Form  1433.] 

II.  That  prior  to  the  time  hereinafter  mentioned  the 
defendant  made  and  constructed  a  stock-yard  near  its  track, 

in  the  town  of in  said  county,  and  to  facilitate  the 

loading  of  live-stock  from  the  said  yard  into  and  upon  its 
cars,  a  chute  or  passage-way  was  constructed  by  the  defend- 
ant from  the  said  yard  to  the  track  of  said  railroad,  so  that 
said  live-stock  could  be  driven  from  said  yard  across  said 
chute  and  upon  the  cars  of  the  defendant  standing  upon  the 
said  railroad  in  front  of  the  said  passage-way;  and  the 
plaintiff  alleges  that  the  said  chute  or  passage-way  was 
negligently  and  improperly  built  so  as  to  project  so  near  to 
the  track  of  the  said  railroad  as  to  greatly  endanger  the  lives 
and  persons  of  the  servants  and  employees  of  the  said  de- 
fendant operating  the  freight  trains  over  said  railroad  at  the 
place  where  said  chute  or  passage-way  was  located. 

III.  That  on  the  ....  day  of ,    19. .,  the  plaintiff 

was  in  the  employment  of  defendant  in  the  capacity  of  con- 
ductor of  a  freight  train  then  passing  over  and  along  said 
railroad,  and  that  at  a  point  a  few  rods  north  of  the  said 
stock-yard  a  side-track  branched  from  the  main  line  and  ran 
past  the  said  chute  or  passage-way  to  the  depot  in  said  town 

of ;  that  in  the  course  of  the  plaintiff's  duty  it  was 

necessary  for  him  to  transfer  a  number  of  said  cars  from  the 
said  main  line  to  the  said  side  track,  and  to  assist  in  the  un- 
coupling of  said  cars;  and  that  while  in  the  act  of  thus 
assisting  and  in  the  exercise  of  due  care  and  caution,  the 
plaintiff  in  necessarily  ascending  to  the  top  of  one  of  said 
cars  by  means  of  the  ladder  on  the  side  thereof,  was  carried 
by  said  car  against  said  chute  or  passage-way,  and  pressed 
between  the  same  and  said  car,  by  means  whereof  he  was 
greatly  bruised  and  wounded  in  his  person,  and  one  of  his 


Chapter  LIX.]  929  [Form  1445. 

legs  crushed  and  broken  [allege  other  injuries,  if  any,  and  the 
damage  suffered]. 

IV.     [Allege  notice  of  injury,  if  necessary.] 

WHEREFORE,  etc. 


1445.  By  a  switchman  injured  by  defective  blocking  of 
track  (adapted  from  Paine  v.  Eastern  Ry.  Ca, 
91  Wis.  340;  64  N.  W.  1005). 

I.  [As  in  Form  1433.] 

II.  That  on  and  prior  to  the  ....  day  of ,  19. ., 

the  defendant  owned  and  controlled  a  certain  railway  yard, 
tracks,  frogs  and  switches  therein,  for  the  transaction  of  its 

business  as  a  common  carrier  in  the  city  of ,  together 

with  the  cars  and  locomotive  engines  thereon,  and  that  on 

said    ....    day  of    ,   19..,  the  plaintiff  was  in  the 

employ  of  the  defendant  as  a  switchman  in  the  said  railway 
yard,  and  as  such  switchman  was  required  to  assist  in  the 
switching,  braking  and  coupling  of  cars  in  the  said  yard,  and 
on  the  said  day  it  became  and  was  his  duty  to  accompany  and 
set  the  brakes  upon  certain  freight  cars  which  were  then  being 
moved  by  the  defendant  and  its  servants  through  said  yard 
and  past  a  certain  frog  and  guard-rail  in  said  yard,  near 
[locate  the  pk  ce  with  exactness]. 

III.  That  it  was  the  duty  of  the  defendant  to  keep  the 
space  between  the  guard-rail  and  the  main  rail  at  said  point 
properly  and  sufficiently  guarded  or  blocked,  so  as  to  prevent 
injury  to  employees,  but  the  said  defendant,  not  regarding 
its  said  duty,  wrongfully  and  negligently  neglected  and 
omitted  to  properly  and  sufficiently  guard  or  block  said  space, 
so  that  the  said  space  became  a  dangerous  trap  to  brakemen 
and  other  employees  in  the  use  of  said  yard,  and  in  conse- 
quence of  the  said  failure  to  block  the  said  space  the  foot  of 
ihe  plaintiff  while  he  was  engaged  in  the  proper  discharge  of 
his  duty  as  aforesaid  became  caught  and  held  fast  in  said 
space  between  the  guard  and  main  rail,  whereby  the  plain- 
tiff \vas  held  and  run  over  by  one  of  the  cars  of  said  defendant 
and   suffered   great   injury   [detail  injuries   received]. 

IV.  That  the  defendant  had  notice  and   knowledge  of 

the  said  defective  condition  of  the  said  guard  or  block  long 
59 


Form  1446.]  930  [Chapter  LIX. 

before  the  time  of  said  injury,  but  that  the  said  plaintiff 
had  no  knowledge  thereof. 

V.  *  [Allege  notice,  if  necessary,  as  in  Form  1406.] 

WHEREFORE,  etc. 

1446.  By  brakeman  for  injuries  from  defective  brake- 
beam  (adapted  from  Wedgewood  v.  0.  &  N.  W. 
Ry.  Co.,  41  Wis.  479). 

I.  [As  in  Form  1433.] 

II.  That  the  plaintiff,  on  and  prior  to  the  ....  day  of 
,  19. .,  was  in  the  employ  of  the  defendant  as  brake- 
man,  running  upon  a  freight  train  daily  over  that  certain 

portion  of  the  defendant's  road  from  the  city  of to 

the  city  of and  that  it  was  the  plaintiff's  duty,  when 

occasion  should  require,  to  go  between  the  freight  cars  of  said 
company  and  couple  them  together  and  uncouple  them,  with 
such  machinery,  appliances  and  fixtures  as  the  defendant 
provided  therefor;  that  in  operating  its  said  road  it  was  the 
duty  of  the  defendant  to  see  that  the  cars  and  other  rolling 
stock  used  thereon  were  safe  and  suitable  for  the  business, 
so  as  not  to  unnecessarily  endanger  the  lives  and  limbs  of  its 
employees    and   servants. 

III.  That  on  or  about  the  ....  day  of ,  19. .,  the 

defendant  carelessly  and  negligently,  and  contrary  to  its 
said  duty,  did  take  upon  its  said  road,  and  use  and  operate  a 
certain  freight  car  upon  the  brake-frame  or  brake-beam  of 
which,  at  the  end  of  said  car,  was  a  large  and  long  bolt,  which 
unnecessarily  and  carelessly  was  allowed  to  project  beyond 
the  frame  or  brake-beam,  and  in  the  way  of  the  brake-man 
when  about  to  couple  or  uncouple  the  car  with  another  car; 
that  the  defendant  negligently  suffered  the  said  bolt  to  re- 
main without  cutting  off  the  projecting  part  thereof  and 
without  informing  the  plaintiff  of  its  dangerous  condition, 
although  it  had  full  knowledge  thereof;  that  the  plaintiff, 
while  in  the  performance  of  his  duties  as  brakeman  afore- 
said, at  the  station  of in  the  county  of ,  and 

while  going  between  said  car  and  another  car  to  couple  them 
together,  and  in  the  exercise  of  due  care,  struck  said  pro- 
jecting bolt  with  his  foot,  and  was  tripped  and  thrown  down, 
and  his  leg  crushed  [state  the  injuries  received]. 

IV.  [Allege  service  of  notice,  if  necessary,  as  in  Form  1406.] 
WHEREFORE,  etc. 


Chapter  LIX.]  931  [Form  1447. 

1447.  By  section  man  for  injury  resulting  from  defective 
brake  rod  (adapted  from  Cowan  v.  C.  M.  &  St. 
P.,  80  Wis.  284;  50  N.  W.  180). 

I.  That  the  defendant  was,  at  the  times  hereinafter 
named,  and  still  is,  a  railway  corporation  incorporated 
under  the  laws  of  this  state,  and  engaged  in  operating  pass- 
enger and  freight  cars  upon  railway  tracks  in  said  state,  and 
especially  through,  to  and  from  the  city  of  Menomonie,  in 
said  state. 

II.  That  at  the  time  of  the  happening  of  the  injury  here- 
inafter stated,  the  plaintiff  was  in  the  employ  of  the  defend- 
ant as  a  section  man,  and  was  required  by  his  duties  to  be 
upon  the  tracks  of  the  defendant  at  and  about  said  city  of 


III.  That  on  the   ....   day  of   ,  19..,  and  for  a 

long  time  prior  thereto  the  defendant  had  negligently  kept 
in  its  possession  and  used  a  freight  car  which  was  defective 
and  unsafe  in  this  particular,  that  an  iron  rod  connected 
with  the  brake  of  said  car  and  upon  which  tension  was  put 
in  setting  the  brake,  was  unsafe  and  defective  by  reason  of 
being  broken  nearly  in  two,  which  said  broken  condition 
had  existed  for  a  long  time  and  was  open  and  observable 
and  easily  discoverable  upon  inspection,  and  of  which  said 
breaking  the  defendant  long  prior  to  the  happening  of  the 
injury  hereinafter  set  forth  had  notice,  and  all  of  which  was 
unknown  to  the  plaintiff. 

IV.  That  on  the  said  ....  day  of ,  19.  .,  the  de- 
fendant wrongfully  and  negligently  had  the  said  car  in  use 
upon  one  of  its  tracks  at  said  city  of ,  and  was  en- 
deavoring to  make  a  flying  switch  upon  the  side  track  at  a 
brick-yard,  about  a  mile  and  a  half  from  which  side  track 
upon  the  main  track  there  was  a  sharp  descent,  and  upon 
making  said  flying  switch  defendant's  employees  detached 
said  defective  car  from  the  others,  and  sent  it  down  said 
descending  track,  unattended  save  by  a  person  in  charge  of 
the  said  car,  who  could  have  stopped  the  car  had  not  said 
brake-rod  broken;  that  in  attempting  to  set  the  brakes  upon 
said  car  and  stop  the  same,  the  said  brake-rod  broke  at  the 
said  defective  place  hereinbefore  mentioned,  and  the  said 
car  became  unmanageable  and  rushed  down  said  track  and 
came  upon  the  main  track  without  the  knowledge  of  the 


Form  1448.]  932  [Chapter  LIX. 

plaintiff,  who  was  lawfully  upon  the  said  track,  and  struck 
him  [state  injuries  received  and  damages  resulting], 

V.     [Allege  notice,  if  necessary,  as  in  Form  1406.] 

WHEREFORE,  etc. 


1448.    By  employee  against  railway  company,  for  in- 
juries by  explosion  of  defective  boiler. 

I.  [As  in  Form  1433.] 

II.  That  the  plaintiff,  on  the day  of ,  19. .,  at 

the  time  of  the  committing  of  the  grievances  hereinafter 
mentioned,  was  in  the  employment  of  the  defendants,  as 
fireman  upon  a  locomotive  engine,  the  property  of  the  de- 
fendants, driven  by  steam  upon  their  road;  and  it  was  the 
duty  of  the  defendants  to  provide  a  good,  safe,  and  secure 
locomotive,  with  good,  safe,  and  secure  machinery  and 
apparatus. 

III.  That  yet  the  defendants,  not  regarding  their  duty, 
conducted  themselves  so  carelessly,  negligently,  and  unskill- 
fully  in  this  behalf,  that  they  provided  and,  used  an  unsafe, 
defective,  and  insecure  locomotive,  of  which  they  had  notice. 

IV.  That  for  want  of  due  care  and  attention  to  their  duty 
in  that  behalf,  on  the  day  and  at  the  place  aforesaid,  and 
while  the  said  locomotive  was  in  the  use  and  service  of  the 
defendants  upon  their  said  railroad,  and  while  the  plaintiff 
was  on  the  same  in  the  capacity  aforesaid,  for  the  defendants, 
the  boiler  connected  with  the  engine  of  the  said  locomotive, 
by  reason  of  unsafeness,  defectiveness,  and  insecurity  thereof, 
exploded,  whereby  large  quantities  of  steam  and  water  es- 
caped therefrom  and  fell  upon  the  plaintiff  [allege  injuries 
received]. 

V.  That  by  reason  thereof  the  plaintiff  became,  and  for  a 
long  time  remained  ill;  and  was  obliged  to,  and  did,  expend 

about  the  sum  of dollars  in  attempting  the  cure  of 

himself,  and  was  for  a  number  of  weeks  prevented  from 
pursuing  his  business,  and  was  otherwise  injured,  to  his 
damage dollars. 

VI.  [Allege  notice  of  injury,  if  necessary,  as  in  Form  1406.] 
WHEREFORE,  etc. 


Chapter  LIX.]  933  [Form  1449. 

1449.  By  stevedore  against  steamboat  company,  for  in- 
juries from  falling  through  open  hatchway 
(adapted  from  Haley  v.  Western  Transit  Co.,  76 
Wis.  344;  45  N.  W.  16). 

I.  That  the  defendant  was  at  the  times  hereinafter 
named,  and  now  is,  a  corporation  organized  and  existing  un- 
der the  laws  of  the  state  of and  engaged  in  the  busi- 
ness of  transporting  goods  for  hire  as  a  common  carrier 
upon  the  Great  Lakes,  and  that  in  the  transaction  of  such 
business  the  defendant  owns  and  operates  a  number  of 
steamboats,  and  keeps  a  warehouse  and  depot  in  the  city  of 

;  and  among  the  steamboats  so  owned  and  used  by 

the  defendant  is  a  steamboat  called 

II.  That  the  plaintiff  for  more  than  three  years  last  past 
has  been  a  stevedore  or  laborer  in  said  city,  and  was  able  to 
earn  prior  to  his  injuries  hereinafter  named  the  sum  of  twelve 
to  fifteen  dollars  per  week  as  such  stevedore. 

III.  That  on  the    ....    day  of    ,   19..,  the  said 

steamboat arrived  at  said  city  of ,  with  a  load 

of  goods  and  merchandise,  and  was  moored  at  the  said  dock 
on  said  day,  and  on  said  day  the  plaintiff,  with  others,  was 
employed  to  remove  the  cargo  from  said  vessel,  a  part  of 
which  cargo  was  placed  upon  what  is  known  as  the  main  deck 
of  said  vessel,  through  which  deck  there  is  a  large  hatchway, 
several  feet  square,  leading  down  to  the  hold  of  said  vessel. 

IV.  That  it  is  the  custom  of  steamboats  Hke  the  said 

to  keep  such  hatchways,  when  not  in  use,  closed,  and 

that  it  is  also  the  custom  when  such  hatchways  are  open  at 
night  to  provide  lamps  on  the  sides  thereof,  but  that  the 
defendant  on  the  night  of  said  ....  day  of  negli- 
gently and  wrongfully  failed  to  place  any  cover  or  hatch  on 
the  said  hatchway,  but  left  the  same  open  and  unprotected, 
and  without  lights  or  lamps  near  the  same. 

V.  That  pursuant  to  his  employment,  the  plaintiff  went 
upon  the  said  main  deck  of  said  steamboat,  and  commenced 
work  in  removing  said  cargo  from  said  main  deck  shortly 
after  eleven  o'clock  on  the  night  aforesaid,  and  continued  at 
such  work  until  about  half  past  one  in  the  morning  of  the 
following  day;  that  at  about  the  time  last  aforesaid,  and  while 
still  engaged  in  said  work,  and  while  he  was  necessarily  and 
carefully  passing  along  said  main  deck,  with  due  care,  he 


Form  1450.]  934  [Chapter  LIX. 

accidentally  fell  through  said  open  hatchway,  and  fell  with 
great  violence  into  the  hold  of  said  vessel,  and  struck  upon 
his  head,  back  and  houlders  and  that  until  he  fell  into  said 
hatchway  he  was  wholly  unaware  of  said  danger,  and 
wholly  unaware  that  the  said  hatchway  was  open. 

VI.  [State  injuries  received  and  damage  suffered.] 

VII.  [Allege  giving  of  notice,  if  necessary,  as  in  Form  1406.] 
WHEREFORE,  etc. 

1450.  By  brakeman  for  injury  by  negligence  of  engineer 
in  operating  freight  engine  (adapted  from  Balt- 
zer  V.  Railway  Co.,  83  Wis.  459;  53  N.  W.  885). 

I.  That  at  the  times  hereinafter  mentioned,  and  prior 
thereto,  the  defendant  was  and  still  is  a  corporation  engaged 

in  operating  a  railroad  running  through  the  village  of 

in  the  state  of 

II.  That  on  or  about  the  ....  day  of ,  19. .,  the 

plaintiff  was  an  employee  of  said  defendant  as  head  brake- 
man  on  a  freight  train  of  said  defendant,  making  regular 

trips  from in  the  state  of to ,  by  way  of 

the  village  of aforesaid. 

III.  That  on  the  said  ....  day  of ,  19 . .,  at  about 

....  o'clock  in  the  morning,  while  it  was  still  dark,  and  while 
the  said  train  and  its  crew  were  employed  in  doing  switching 
in  the  said  village  of ,  it  became  the  duty  of  the  plain- 
tiff, together  with  the  engine  and  the  engineer  operating  said 
engine,  to  proceed,  and  they  did  go  on  to  a  certain  side  track 
of  said  defendant  in  the  depot  grounds  of  the  said  village  of 

,  to  couple  on  to  three  flat  cars  that  stood  thereon  near 

the  extreme  east  end  of  said  side  track,  and  said  engine  was 
caused  to  go  forward  towards  said  cars  on  said  side  track 
with  the  front  end  forward. 

IV.  That  the  said  engineer,  while  operating  said  engine  on 
said  side  track,  did  carelessly  and  negligently  cause  said 
engine  to  run  over  said  side  track  at  an  unusually  fast  rate  of 
speed,  and  was  not  giving  his  attention  to  his  duties  while 
managing  his  said  engine,  and  that  this  plaintiff  stood  upon 
the  pilot  of  said  engine,  as  it  was  necessary  and  proper  for 
him  to  do  in  order  to  couple  the  said  engine  on  to  the  said 
flat  cars.  That  when  said  engine  reached  said  cars  the  plain- 
tiff proceeded  to  attempt  to  couple  the  said  engine  on  the 


Chapter  LIX.]  935  [Form  1451. 

said  cars,  as  was  his  duty,  and  while  in  the  act  of  attaching 
the  pilot  bar  of  said  engine  to  the  coupling  head  of  said  cars, 
the  said  engine  being  in  motion,  suddenly  and  without 
warning  to  this  plaintiff  the  said  engineer  carelessly  and 
negligently  checked  the  speed  of  said  engine  with  such  force 
as  to  throw  the  plaintiff  forward,  causing  him  to  fall  between 
the  engine  and  the  car  when  they  collided  together,  whereby 
the  plaintiff's  arm  was  caught  between  the  engine  and  the 
car  [state  other  injuries  received,  if  any]. 

V.     [Allege  service  of  notice,  if  necessary,  as  in  Form  1406.] 

WHEREFORE,  etc. 

1451.    Against  railway  company  for  collision  at  crossing. 

I.  [As  in  Form  1433.] 

II.  That  on  the  ....  day  of ,  19.  .,  the  plaintiff 

was  traveling,   with  due  care,   in   a  wagon  drawn  by  two 

horses,  along  a  public  highway  in  the  town  of in  said 

county,  which  crosses  said  railroad  about  , , , .  miles  north  of 

the  city  of [or  otherwise  describe  and  locate  the  crossing 

with  certainty]:  and  as  plaintiff  reached  said  public  crossing 
defendant  ran  one  of  its  locomotives,  with  a  train  of  cars 
attached,  across  said  highway  at  said  crossing  at  a  great  and 
negligent  rate  of  speed  and  without  warning  of  any  kind,  so 
that  by  reason  of  the  said  negligent  operation  of  said  loco- 
motive and  train  the  said  locomotive  struck  the  horses  which 
the  plaintiff  was  driving,  and  killed  them  and  destroyed  the 
harness  and  wagon,  and  threw  plaintiff  out  upon  the  ground 
with  such  force  as  to  break  his  leg  [or  otherwise  state  injuries]. 

III.  That  plaintiff  was  the  owner  of  said  horses,  harness 
and  wagon  and  that  the  same  were  worth dollars. 

IV.  That  plaintiff  necessarily  spent   dollars  for 

medical  attendance  and  medicines  in  an  endeavor  to  cure 
himself  of  said  injuries,  and  for  a  period  of  ....  months  was 

unable  to  attend  to  his  business  as in  consequence  of 

said  injuries  and  is  permanently  injured  so  that  he  will 
never  be  able  again  to  carry  on  said  business  as  efficiently  as 
before,  and  was  otherwise  greatly  injured,  all  to  his  damage 
dollars. 

V.  [Allege  notice,  if  necessary,  to  be  served  before  action,  as 
in  Form  1406.] 

WHEREFORE,  etc. 


rorms  1452,  1453.]  936  [Chapter  LIX. 

1452.  The  same,  another  form. 

I.  [As  in  Form  1433.] 

II.  That  on  the day  of ,  19.  .,  the  plaintiff 

was  with  due  care  traveling  in  a  carriage  drawn  by  two 
horses,  all  of  which  were  his  own  property  and  of  the  value 

of dollars,  along  a  certain  highway  in  the  town  [or 

city]  of known  as street  [or  extending  from 

to ]  which  highway  [or  street]  crosses  the  track 

of  said  railroad  at  a  point  [describe  point  of  crossing  with 
certainty],  and  as  the  plaintiff  had  reached  said  crossing  the 
defendant  negligently  caused  one  of  its  locomotives,  with  a 
train  of  cars  attached,  to  approach  and  rapidly  pass  the  said 
crossing  at  a  high  and  negligent  rate  of  speed  wdthout  sound- 
ing the  whistle  or  ringing  the  bell,  or  otherwise  notifying  the 
plaintiff  of  the  approach  of  said  locomotive  and  train. 

III.  That  the  said  track  is  so  negligently  constructed  at 
said  crossing  that  by  reason  of  a  sharp  curve  and  deep  cut 
the  plaintiff  was  unable  to  see  the  said  track  from  the  high- 
way on  which  he  approached  it,  until  he  was  upon  the  said 
crossing,  and  that  by  reason  of  the  negligence  of  the  defend- 
ant, its  agents  and  servants,  in  running  said  train  at  said 
negligent  rate  of  speed  and  in  omitting  to  give  warning  by 
sounding  the  whistle  or  ringing  the  bell  of  said  locomotive, 
the  locomotive  and  train  ran  with  great  force  into  the  plaint- 
iff's said  team,  instantly  killing  said  horses,  breaking  the 
said  carriage  and  throwing  the  plaintiff  to  the  ground  with 
such  violence  as  to  break  his  right  leg  [state  injuries  received]. 

IV.  That  thereby  the  plaintiff  lost  said  horses,  and  said 
carriage,  was  put  to  great  expense  of  care  and  medical  at- 
tendance, suffered  great  pain  and  anguish,  was  hindered  and 
delayed  in  attending  to  his  business  [as  a ]  and  per- 
manently lamed  and  crippled,  so  as  to  unfit  him  for  carrying 
on  said  business,  in  all  to  his  damage   dollars. 

V.  [Allege  notice  of  injury,  if  necessary,  as  in  Form  1406]. 
WHEREFORE,  etc. 

1453.  The  same,  another  form  (adapted  from  Penna.  R. 

R.  Co.  V.  Krick,  47  Ind.  368). 

I.  [Allege  corporate  character  and  business  of  defendant, 
the  existence  and  location  of  the  crossing  and  the  fact  of  plaint- 


Chapter  LIX.]  937  [Form  1454. 

(^'s  approach  to  the  same  upon  the  highway,  as  in  previous 
forms,  and  continue]: 

II.  That  the  defendant  carelessly  and  negligently  caused 
one  of  its  locomotives,  with  a  train  of  cars  thereto  attached, 
to  approach  said  crossing  from  the  west  side  thereof,  and  then 
and  there  to  pass  rapidly  over  the  track  of  said  railway,  and 
negligently  and  carelessly  omitted,  while  so  approaching  said 
crossing,  to  give  any  signal,  by  ringing  the  bell  or  sounding 
the  steam  whistle  of  said  locomotive  of  the  approach  of  said 
locomotive  and  cars,  until  the  plaintiff  was  in  the  immediate 
vicinity  and  within  twenty  feet  of  said  track,  and  wholly 
unable  to  check  his  said  team  and  avoid  a  collision  with  said 
locomotive  and  train;  that  the  plaintiff  could  not  see  said 
train,  nor  the  track  of  said  railway  west  of  said  crossing  while 
he  was  approaching  the  same  on  account  of  buildings  and 
hoop-poles  and  other  material  piled  on  the  grounds  of  said 
railway  with  the  knowledge  and  permission  of  defendant,  on 
the  west  side  of  said  crossing;  and  that  by  reason  of  the  act 
of  said  defendant  in  causing  said  locomotive  and  train  to 
pass  over  said  crossing  at  a  great  rate  of  speed  and  without 
signals  as  aforesaid,  the  said  locomotive  and  cars  struck  the 
plaintiff's  carriage  and  horses  [allege  injuries  received  and 
damages];  that  the  said  injuries  were  not  caused  by  the  want 
of  ordinary  care  or  diligence  on  the  part  of  the  plaintiff. 

III.  [Allege  notice,  if  necessary,  as  in  Form  1406.] 
WHEREFORE,  etc. 

1454.  By  passenger  in  street  car  against  railway  com- 
pany whose  engine  negligently  collided  with 
with  street  car. 

I.  [As  in  Form  1433.] 

II.  That  the  defendant's  said  railway  track  crosses   a 

public  street  in  the  city  of known  as street, 

upon  which  street  there  is  and  was  at  the  times  hereinafter 
mentioned  a  street  railway  operated  by  trolley  cars,  and  that 
said  defendant's  said  track  and  said  street  railway  track 
cross  each  other  at  grade  at  said  crossing. 

III.  That  on  the  ....  day  of ,  19.  .,  at  about  the 

hour  of  ....  o'clock  p.  m.  the  plaintiff  was  riding  as  a  pass- 
enger upon  one  of  said  trolley  cars  upon  said  street  railway 
track,  and  that  as  said  trolley  car  was  crossing  the  track  of 


Form  1455.]  938  [Chapter  LIX. 

said  defendant  company  the  said  trolley  car  was  run  into  and 
demolished  by  a  locomotive  operated  by  defendant's  ser- 
vants upon  its  said  track. 

IV.  That  the  said  collision  between  said  locom-otive  and 
said  trolley  was  caused  wholly  by  the  carelessness  and  negli- 
gence of  the-defendant  and  its  servants  in  this,  that  the  said 
defendant  and  its  servants  operating  said  locomotive  gave 
no  warning  either  by  the  blowing  of  a  whistle  or  the  linging  of 
a  bell,  of  its  approach  to  said  crossing,  and  kept  no  lookout 
nor  headlight  upon  the  front  of  said  locomotive  while  ap- 
proaching said  crossing,  and  caused  the  said  locomotive  to 
approach  and  pass  said  crossing  at  a  negligent  and  unlawful 
rate  of  speed,  to-wit,  at  the  rate  of  ....  miles  per  hour;  and 
that  solely  in  consequence  of  said  various  acts  of  negligence 
on  the  part  of  the  defendant  and  its  servants  said  trolley  car 
was  derailed  and  destroyed,  and  this  plaintiff  was  severely 
injured,  and  his  leg  broken,  [allege  injuries  according  to  the 
fad,  and  resulting  damage]. 

V.  [Allege  notice  of  injury,  if  required,  as  in  Form  1406.] 
WHEREFORE,  etc. 

1455.    By  passenger  against  street  railway  company,  for 
injuries  from  premature  starting  of  car. 

I.  That  at  the  times  hereinafter  mentioned  the  defendant 
was  and  still  is  a  corporation  organized  and  existing  under 

and  by  virtue  of  the  laws  of  the  State  of and  was  and 

still  is  operating  street  cars  propelled  by  electricity  [or 
horses]  upon  certain  streets  in  the  city  of for  the  car- 
riage of  passengers  for  hire. 

II.  That  on  the day  of ,  19. .,  the  plaintiff 

entered  one  of  the  cars  of  said  company  and  became  a  passen- 
ger on  said  railroad,  to  be  carried  safely  from  the  interesc- 

tion  of and  .......  streets  to street  on  said 

road,  and  paid  his  fare  to  the  conductor  of  said  car. 

III.  That  upon  reaching  said street,  the  plaintiff 

notified  the  conductor  of  said  car  of  his  desire  to  alight,  and 
thereupon  said  conductor  did  stop  said  car,  as  requested, 
and  while  plaintiff  was  in  the  act  of  leaving  the  same,  and 
without  negligence  on  her  part,  said  defendant,  by  its  ser- 
vant, the  motorman  upon  said  car,  did  so  negligently  and 
unskillfully  control  and  manage  said  car  and  the  machinery 


Chapter  LIX.]  939  [Form  1456. 

thereof,  that  said  car  was  suddenly  and  violently,  and  with- 
out notice  or  warning  to  plaintiff,  started  forward  and  along 
the  track  of  said  railroad,  thereby  violently  throwing  the 
plaintiff  to  the  ground  and  [allege  injuries  and  damage]. 

IV.     [Allege  notice,  if  required,  as  in  Form  1406.] 

[If  the  injury  was  received  while  the  passenger  was  boarding 
the  car,  insert  in  place  of  II  and  III  the  following]: 

II.  That  on  the  ....  day  of ,  19. .,  one  of  de- 
fendant's street  cars  stopped  to  take  on  passengers  at  the 

corner  of   and   streets  in  said  city  and  the 

plaintiff  attempted  to  step  upon  the  rear  platform  of  said 
car  intending  to  become  a  passenger  and  take  a  seat  in  said 
car,  and  that  while  he  was  so  attempting  to  step  on  said 
platform  and  before  he  had  reasonable  time  to  enter  said  car 
the  motorman  thereof  suddenly  and  without  warning  and 
with  a  violent  jerk  started  said  car  thereby  throwing  the 
plaintiff  down  [allege  injuries  and  damage]. 

WHEREFORE,  etc. 

1456.  The  same,  another  form  (adapted  from  Hardy  v. 
Milwaukee  Street  Railway  Co.,  89  Wis.  183;  61 
N.  W.  771). 

I.  [As  in  last  preceding  form.] 

II.  That  on  the  ....  day  of ,  19. .,  the  plaintiff 

entered  one  of  the  cars  of  defendant  at  the  corner  of 

street  and street  in  said  city,  paid  her  fare,  and  was 

carried  as  a  passenger  from  the  said  point  of  embarkation  to 
the  point  where  she  desired  to  alight  from  said  car;  and  that 
said  car  was  in  charge  of  a  motorman  on  the  front  platform 
thereof  and  a  conductor  who  collected  fares  and  gave  signals 
for  the  stopping  and  starting  of  said  car,  and  whose  duty  it 
was  to  assist  passengers  on  and  off  said  car. 

III.  That  when  the  plaintiff  desired  to  alight  from  said 
car  she  gave  the  usual  signal  to  the  conductor,  who  trans- 
mitted the  same  to  the  motorman,  and  the  said  car  was 
stopped  by  said  motorman,  and  the  plaintiff  went  to  the  rear 
end  of  said  car  to  alight,  and  that  while  she  was  upon  the 
platform  of  said  car,  and  was  about  to  step  from  the  last  step 
thereof  to  the  ground,  the  said  conductor  and  motorman 
caused  said  car  to  be  suddenly  started  at  a  rapid  rate  of 
speed,  by  means  whereof  and  without  fault  upon  her  part 


Form  1457.]  940  [Chapter  LIX. 

the  plaintiff  was  violently  thrown  upon  the  ground   and 
[state  injuries  and  damages]. 

IV.     [Allege  giving  of  notice,  if  necessary,  as  in  Form  1406.] 

WHEREFORE,  etc. 

1457.  By  passenger  against  street  railway  company,  for 
injuries  resulting  from  defective  insulation 
(adapted  from  Burt  v.  Douglas  Co.  Street  Ry., 
83  Wis.  229;  53  N.  W.  447). 

I.  [As  in  Form  1455.] 

II.  That  on  the  ....  day  of ,  19 .  . ,  the  said  defend- 
ant, for  the  purpose  of  carrying  passengers  as  aforesaid,  ran 
upon  its  said  track  two  cars  attached  together  so  that  persons 
could  pass  from  one  car  to  the  other  by  taking  hold  of  iron 
railings  attached  to  the  platforms  of  said  cars,  and  by  step- 
ping from  the  step  of  one  car  to  the  step  of  the  other  while  the 
said  cars  were  in  motion.  That  on  said  day  it  was  exceedingly 
cold,  and  said  defendant  had,  previous  to  said  day,  been  in 
the  habit  of  heating  its  said  cars  for  the  comfort  of  passengers, 
and  had  held  out  to  the  public  that  said  cars  would  be  so 
warmed. 

III.  That  on  said  last  mentioned  day,  at  about  the  hour  of 
....  o'clock  in  the  evening,  this  plaintiff  entered  as  a  passen- 
ger upon  a  train  composed  of  two  of  defendant's  cars  running 
upon street  in  said  city,  which  cars  w^ere  attached  to- 
gether as  aforesaid,  and  first  went  into  the  front  car  of  said 
train  and  found  that  the  same  was  cold  and  had  no  fire  there- 
in; that  the  plaintiff  thereupon  attempted  to  pass  from  said 
first  car  to  the  second  car  in  the  manner  aforesaid,  and  as 
people  had  been  accustomed  and  allowed  to  do  for  a  long 
time  previously;  and  that  while  he  was  so  passing,  and  neces- 
sarily had  hold  of  the  iron  railing  aforesaid,  the  said  defend- 
ant, negligently  and  carelessly  allowed  a  dangerous  and 
powerful  current  of  electricity  to  pass  down  said  iron  railings 
and  through  the  plaintiff's  hands  and  body,  whereby  the 
plaintiff  was  paralyzed  and  unable  to  release  his  hold  from 
said  railing,  and  was  dragged  along  between  said  cars  and 
when  the  current  of  electricity  was  shut  ofT  was  dropped 
between  said  cars  and  thereby  greatly  injured  [state  injuries 
and  damage]. 

IV.  [Allege  giving  of  notice,  if  necessary,  as  in  Form  1406.] 
WHEREFORE,  etc. 


Chapter  LIX.]  941  [Form  1458. 

1458.  By  administrator,  for  death  of  person  killed  by 
collision  with  street  car  (adapted  from  Thore- 
sen,  Adm.  v.  La  Crosse  City  Ry.  Co.,  94  Wis.  129; 
68  N.  W.  548). 

I.  [As  in  Form  1455.] 

II.  That  on  the  ....  day  of  . . . .,  19. .,  at  about  the  hour 
of  ...  .  o'clock  in  the  evening  the  plaintiff's  intestate,  the  said 
L . . . .  M . .  .  .  was  traveling  in  a  wagon  drawn  by  one  horse, 

in  a  public  highway  of  said  city  known  as street,  upon 

which  the  defendant  operates  one  line  of  its  said  railroad,  and 

was  crossing street  in  said  city;  and  that  as  said  L.  .  .  . 

M . . . .  was  crossing  the  track  of  said  defendant  company  at 
the  intersection  of  said  streets  the  defendant  neghgently 
caused  one  of  its  cars  to  approach  and  rapidly  pass  the  said 
crossing,  and  carelessly  omitted  to  ring  the  bell  of  said  car,  or 
otherwise  warn  the  said  L ....  M  ....  of  the  approach  of  said 
car,  or  to  stop  at  said  crossing  and  permit  the  horse  and 
vvagon  of  and  driven  by  said  L.  .  .  .  M . . . .  to  safely  pass  the 
same. 

III.  That  the  said  L M.  . . .,  in  the  exercise  of  due 

care,  was  then  and  there  crossing  said  street  railway  track 
riding  in  said  wagon,  when  by  reason  of  the  said  negligence 
of  the  defendant,  its  agents  and  servants,  in  running  said  car 
at  a  negligently  rapid  rate  of  speed  and  without  stopping  it 
at  said  street  crossing,  and  omitting  to  give  any  warning  of 
the  approach  of  said  car,  the  said  car  ran  with  great  force  into 
the  wagon  in  which  the  said  L.  .  .  .  M .  .  . .  was  riding,  break- 
ing the  same  and  throwing  the  said  L.  . . .  M . . . .  to  the 
ground  with  such  violence  as  to  fracture  her  skull  and  inflict- 
ing other  injuries  from  which  the  said  L.  .  .  .  M .  .  . .  died  on 

the    ....   day  of    19..,  leaving  her  surviving  the 

plaintiff,  her  husband. 

IV.  That  thereafter,  on  the day  of ,  19 .  . ,  such 

proceedings  were  duly  had  in  the  county  court  of   

county  that  letters  of  administration  upon  the  estate  of  said 
L .  .  .  .  M .  .  .  .  were  duly  granted  to  the  plaintiff  as  sole 
administrator  thereof,  and  that  the  plaintiff  accepted  said 
trust,  and  thereafter  duly  qualified  and  ever  since  has  been 
and  now  is  such  administrator. 

V.  That  the  said  L M at  the  time  of  her  death 

was  ....  years  of  age,  and  in  good  health,  and  had  been  for 


Form  1459.]  942  [Chapter  LIX. 

....  years  previously  engaged  in  the  business  of  selling  milk 
at  said  city,  and  that  the  management  of  said  business 
depended  upon  her  work  and  efforts;  that  the  plaintiff,  her 
husband,  was  at  the  time  hereinbefore  stated,  and  now  is,  in 
feeble  health,  and  unable  to  support  himself  by  his  own  work 
and  labor,  and  that  said  L. ...  M ....  by  her  labor,  and  from 
the  profits  of  said  business  contributed  to  the  support  and 
maintenance  of  the  plaintiff  [state  damages  suffered], 

VI.    [Allege  notice,  if  necessary,  as  inform  1406.] 

WHEREFORE,  etc. 

1459.  By  administrator  of  a  person  killed  by  gross  negli- 
gence of  the  motorman  of  an  intemrban  street 
car  (adapted  from  Wilson  v.  C.  V.  R.  R.,  120 
Wis.  636;  98  N.W.  536)." 

I.  That  at  the  times  hereinafter  mentioned  the  defendant 
was  and  still  is  a  corporation  organized  and  existing  by  virtue 

of  the  laws  of  the  state  of and  engaged  in  operating  a 

street  railway  system  by  electric  power  in  the  cities  of 

and together  with  an  electric  railway  line  extending 

between  the  said  cities,  upon  which  it  has  during  said  times 
run  and  operated  electric  cars  in  carrying  passengers  between 
said  cities. 

II.  That  on  the  ....  day  of 19 .  .,  the  plaintiff's 

intestate,  one  L . . . .  M . . . .  was  traveling  along  a  certain 

highway  in  the  town  of extending  from  [give  terminal 

points  of  highway]  which  highway  crosses  the  said  railway 
track  of  said  defendant  at  [locale  the  crossing];  that  said  L. . . . 
M . . . .  was  driving  in  a  westerly  direction,  riding  in  a  cutter 
drawn  by  a  team  of  horses,  and  while  crossing  the  said  railway 
track  of  the  defendant  on  said  highway,  and  in  the  exercise  of 
due  care,  he  was  struck  by  one  of  the  cars  of  the  defendant 
company  which  was  then  proceeding  in  a  southerly  direction 
along  said  track  over  said  crossing,  and  mortally  injured  so 
that  he  died  upon  the  same  day. 

"  In    the    case    on    which    this  Winnebago  Co.  Traction  Co.,  123 

form  is  based,  it  is  held  that  un-  Wis.   297;    101   N.   W.     672,   it  is 

der    a    complaint    charging    gross  held  that  the  two  causes  of  action 

negligence  no  recovery  can  be  had  are  inconsistent   and   not  joinable 

for  mere  want   of   ordinary   care;  in  the  same  complaint. 
n  a  subsequent  case     Rideout  v. 


Chaptfir  LIX.]  943  [Form  1460. 

III.  That  the  said  car  of  the  defendant  which  struck  the 
said  L . . . .  M . . . .  was  at  said  time  in  the  care  and  manage- 
ment of  a  motorman  and  conductor,  servants  of  said  de- 
fendant, and  that  the  said  motorman  and  conductor  in  the 
operation  of  said  ear  ran  at  a  high  rate  of  speed,  to-wit,  at 
the  rate  of  more  than  25  miles  per  hour,  at  the  time  the  same 
was  passing  over  said  crossing,  and  failed  and  omitted  to  give 
any  warning  of  the  approach  of  said  car;  that  the  said  ser- 
vants of  said  defendant,  before  the  said  car  reached  said 
crossing,  discovered  the  fact  that  said  deceased  was  about  to 
cross  the  same  and  was  in  great  and  imminent  peril  of  being 
injured,  and  that  the  said  servants  had  ample  time  to  stop 
said  car  before  reaching  said  crossing  and  striking  the  plain- 
tiff's intestate,  but  that  they  and  each  of  them  made  no 
attempt  to  stop  said  car  but  wantonly  and  wilfully  ran  the 
said  car  at  said  high  rate  of  speed  onto  and  against  said 
deceased  with  a  gross  and  utter  disregard  of  human  life. 

IV.  [Allege  appointment  of  administrator,  and  damages^  as 
in  last  preceding  form.] 

V.  [Allege  notice,  if  necessary,  as  in  following  form.] 
WHEREFORE,  etc. 

1460.    By  infant,  for  injuries  from  being  negligently  run 
over  by  a  street  car. 

I.  That  the  plaintiff  is  an  infant  under  the  age  of  twenty- 
one  years,  to-wit,  of  the  age  of  ....  years,  and  that  on  the 

....     day  of   ,  19. .,  on  the  application  duly  made 

A. . . .  B .  .  . .  was,  by  order  of  J.  . . .   K.  .  .  .  judge  of  the 

court  of county  duly  appointed  the  guardian 

ad  litem  of  this  plaintiff,  for  the  purposes  of  this  action. 

II.  [Allege  incorporation  and  business  of  plaintiff  as  in 
Form  1433.] 

III.  That  on  the  ....  day  of ,  19 . .,  a  certain  car 

of  the  defendant,  propelled  by  electricity,  v/as  by  its  servants 

being  driven  upon street  in  said  city  in  a  southerly 

direction  when  the  said  infant  plaintiff  was  lawfully  passing 

said street  in  a  westerly  direction  at  a  point  [locate 

the  point]  that  the  defendant,  by  its  said  servants,  so  negli- 
gently and  carelessly  propelled  and  conducted  said  street 
car  that  the  same  was  driven  with  great  force  against  and 
over  said  infant  plaintiff,  cutting  off  his  left  arm,  and  other- 
wise seriously  and  permanently  injuring  him. 


Forms  1461,  1462.]  944  [Chapter  LIX. 

IV.  That  in  additici  Lo  the  negligence  hereinbefore  men- 
tioned, the  defendant  carelessly  and  negligently  permitted 
said  street  car  to  become  and  remain  out  of  repair,  in  that 
the  brakes  thereon  had  become  weakened  and  unserviceable, 
so  that  they  would  not  stop  said  car  with  reasonable  certainty 
or  celerity,  or  within  a  reasonable  distance,  yet  that  the  de- 
fendant carelessly  and  negligently  operated  the  same  while 
said  brakes  were  so  defective  and  unserviceable,  and  its  said 
servants  so  negligently  conducted  and  operated  said  unsafe 
and  unserviceable  car,  by  reason  whereof  the  same  was 
driven  against  said  infant  plaintiff  as  aforesaid,  causing  the 

loss  of  his  said  arm,  to  his  damage  in  the  sum  of 

dollars. 

[Allege  notice  if  necessary,  as  in  Form  1406.] 

WHEREFORE,  etc. 

1461.  Aguinst  railroad  company,  for  negligently  killing 

cattle;  general  form. 

I.  [As  in  Form  1433.] 

II.  That  on  the  ....  day  of ,  19. .,  the  plaintiff 

was  the  owner  and  possessed  of  certain  cattle,  to-wit,  [desig- 
nating them]  of  the  value  of dollars,  and  which  cows 

and  oxen  casually  and  without  the  fault  of  the  said  plaintiff, , 
strayed  in  and  upon  the  track  and  ground  occupied  by  the 
railroad  of  the  said  defendant  at  [describe  or  locate  place  with 
certainty]. 

III.  That  the  said  defendants,  by  their  agents  and  serv- 
ants, not  regarding  their  duty  in  that  respect,  so  carelessly 
and  negligently  ran  and  managed  a  certain  locomotive  and 
cars,  which  they  were  then  and  there  operating  over  the  said 
railroad  track  at  a  high  and  dangerous  rate  of  speed,  that  the 
same  ran  against  and  over  the  said  cows  and  oxen  of  the  said 
plaintiff,  and  killed  and  destoryed  the  same,  to  the  damage  of 
the  plaintiff dollars. 

IV.  [A  liege  notice,  if  necessary,  as  in  following  form.] 
WHEREFORE,  etc. 

1462.  Against  railroad  company  for  killing  stock,  where 

road  ^3  not  fenced,  as  required  by  law.'^ 

I.  That  the  defendant  was  at  the  times  hereinafter  men- 
tioned, and  still  is,  a  railroad  corporation  organized  under 


Chapter  LIX.]  945  [Form  1462. 

the  laws  of  the  state  of operating  a  railroad  through 

the  said  county  of and  has  been  operating  the  said 

railroad  continuously  since  about  the  ....   day  of , 

19 . .,  and  for  more  than  ....  months  prior  to  the  ....  day  of 
,  19. .  [the  day  of  the  accident]. 

II.  That  on  the  ....  day  of 19. .,  three  cows  [or 

otherwise  describe  stock  killed],  the  property  of  the  plaintiff, 

of  the  value  of dollars,  strayed  upon  the  track  and 

right  of  way  of  the  defendant  at  a  point  about  ....  miles 

north  of  the  city  of in  said  county  and  state  [describe 

place  with  certainty],  and  were  then  and  there  negligently 
run  over  and  killed  by  a  locomotive  and  train  of  the  de- 
fendant then  being  operated  at  a  high  and  dangerous  rate  of 
speed  over  said  road  by  the  defendant. 

III.  That  the  said  defendant  for  the  space  of  six  months 

prior  to  the  said  ....  day  of ,  19 .  . ,  had  failed  to  fence 

its  said  track  and  right  of  way  at  the  point  aforesaid  [or  had 
failed  to  maintain  and  keep  in  repair  the  fence  along  its  said 
track  and  right  of  way],  and  that  the  said  cattle  were  so  run 
over  and  killed  in  consequence  of  the  said  failure  to  fence  [or 
to  keep  in  repair  the  fence  along]  its  said  right  of  way  at  the 
point  aforesaid,  and  the  said  negligent  operation  of  the  said 
locomotive  and  train. 

IV.  [Allege  service  of  notice  of  injury,  as  may  be  required 
by  the  particular  statute,  as  for  instance  in  Wisconsin.     See 

Stats.    1913,  sec.  1816b:]  That  on  the   day  of , 

19. .,  and  within  one  year  from  the  happening  of  said  acci"- 

i^The    statutes    of    the    various  Stats.  1909  sees.  7075-7078;  Mont, 

states  differ  considerably  in  their  Rev.  Codes  1907  sec.  4308;  Minn, 

requirements  as  to  fencing  and  the  Gen.   Stats.   1913  sees.  4263-4265; 

steps  necessary  to  fix  liabiUty  for  Mo.  R.   S.   1909  sees.  3145,  3146; 

killing    of    animals    by    reason    of  Neb.  R.  S.  1913  sees.  6035,  6036; 

failure  to  build  or  maintain  fences  N.    Dak.    Rev.    Codes    1905    sees. 

and  cattle  guards.    When  a  certain  4299-4301;  S.  Dak.  C.  C.  1908  sec. 

time  is  given  in  which  to  build  a  542-544;  and  Chap.  218,  Laws  of 

fence   the   complaint   should   show  1907,   S.   Dak.   Comp.   Laws   1908 

that  the  time  has  expired.     Wis.  p.  443,  v.  2.     Okla.   Comp.  Laws 

Stats.  1913  sees.  1810-1813;  18166;  1909  sec.  7499-7501;  Oregon  Laws 

Ariz.  R.S.  1913  sec.  3779;  Ark.  Dig.  1910   sec.    6978,    6979;    Tex.    Civ. 

of    Stats.    1904    sec.    6644;    6645;  Stats.  Ann.   1913  art.  6596,  6603; 

Cal.    C.    C.    1906   sec.    485;    Colo.  Utah  Comp.  Laws  1907  sec.  456x, 

Stats.  Ann.  1911  sees.  5478,  5479,  Wash.  Rem.  and  Bal.   Code   1910 

5479-A,  5479-B;  Idaho  Rev.  Codes  sees.  8730-8731;  Wyo.  Comp.  Stats. 

1908  sees.  2814,  2815;  Iowa  Ann.  1910,  sees.  2593,  2594. 
Code  1897  sec.  2055;  Kans.  Gen. 
60 


Forms  1463,  1464.]  946  [Chapter  LIX. 

dent  the  plaintiff  caused  to  be  served  upon  the  said  defend- 
ant a  notice  in  writing  signed  by  the  plaintiiT,  stating  the 
time  and  place  where  such  damage  occurred,  and  that  satis- 
faction is  claimed  of  such  corporation,  a  copy  of  which  notice 
so  served  is  attached  hereto  and  marked  "Exhibit  A". 
[See  Form  78.] 

WHEREFORE  [Demand  for  judgment.  If  in  Minnesota, 
demand  double  costs.     Minn.  Gen.  Stats.  1913,  sec.  4264]. 

1463.  The  same;  Iowa  and  Nebraska. 

I  and  II.      [As  in  last  preceding  form.] 

III.  That  the  point  where  the  said  cattle  were  so  negli- 
gently run  over  and  killed  was  a  point  on  defendant's  said 
railway  where  the  defendant  [in  Iowa  say:  had  a  right  to  fence 
the  same],  [in  Nebraska  say:  was  required  by  law  to  fence 
the  same  but  had  not  done  so],  and  that  said  cattle  were 
killed  as  aforesaid  by  reason  of  the  defendant's  said  failure 
to  fence  said  railway,  and  by  the  said  negligent  operation  of 
said  railway  and  train. 

IV.  [//  double   damages   are  claimed,   under  Iowa  Ann. 

Code,  1897,  sec.  2055]:    That  on  the day  of , 

19..  [more  than  thirty  days  before  suit  is  brought]  plaintiff 
caused  a  written  notice,  accompanied  with  an  affidavit  of 
said  killing  of  said  cattle  to  be  served  on  L .  .  . .  M .  . .  .  the 
station  [or  ticket]  agent  employed  in  the  management  of  the 

business  of  the  defendant  at in  said  county.     Copies 

of  said  notice  and  affidavit  are  hereto  annexed  and  made  a 
part  of  this  complaint,  marked  exhibits  "A"  and  "B"  re- 
spectively [see  Form  83,  supra].  That  said  defendant  has 
neglected  and  refused  to  pay  the  value  of  said  cattle. 

WHEREFORE  [Demand  for  double  damages]. 

1464.  Against  railroad  company  for  negligently  setting 

fire." 

I.  [As  in  Form  1462.] 

II.  That  on  the  ....  day  of ,  19 .  . ,  the  plaintiff  was 

the  owner  [or  lessee]  and  in  possession  of  those  certain  prem- 
ie Under  various  statutes,  when  it      raised   that   it   was   the   result   of 

is  shown  that  a  fire  was  kindled  by  neghgence.  Wis.  Stats.  1913  sec. 
sparks  from  the  engine  of  a  railway  1816a;  Colo.  Code  Ann.  1911  sec. 
company,   there  is  a  presumption      5511,  5512;  Iowa  Ann.  Code  1897 


Chapter  LIX.]  947  [Form  1465. 

ises  described  as  [insert  description]  which  premises  immedi- 
ately adjoin  the  lands  and  right  of  way  of  the  defendant,  and 
that  there  were  on  said  premises  at  said  time  ....  stacks  of 
hay  and  a  frame  barn  containing  ....  bushels  of  oats  [describe 
property  burned]  all  of  which  were  the  property  of  the  plain- 
tiff, and  were  of  the  value  of dollars. 

III.  That  defendant,  on  an  prior  to  said    ....   day  of 

,   19..,  negligently  permitted  dry  grass,   and  other 

combustible  material  to  accumulate  and  remain  along  its 
said  right  of  way  adjacent  to  plaintiff's  premises,  and  that  on 
said  last  named  day  the  defendant's  servants,  while  running 
one  of  its  trains  on  said  road,  past  plaintiffs  said  premises, 
negligently  and  carelessly  managed  said  train,  and  failed  to 
employ  suitable  appliances  to  prevent  the  escape  of  sparks 
and  fire  from  the  engine  thereof,  and  negligently  and  care- 
lessly allowed  burning  coals  and  fire  to  be  thrown  or  dropped 
from  said  engine  so  that  the  same  set  fire  to  the  said  dry  grass 
and  other  material  so  upon  its  right  of  way,  and  negligently 
and  carelessly  suffered  said  fire  to  escape  from  its  right  of 
way,  and  to  spread  upon  plaintiff's  said  premises,  whereby 
plaintiff's  said  barn  and  property  aforesaid  were  burned  and 
destroyed,  to  plaintiff's  damage dollars. 

IV.  [Allege  service  of  notice,  if  required,  as  in  the  forms 
immediately  preceding.] 

WHEREFORE,  etc. 

1465.    By  servant  against  employer  for  injuries  from  de- 
fective or  dangerous  machinery;  general  form. 

I.  That  at  the  times  hereinafter  named  the  defendant  was 
and  still  is  [a  corporation  organized  and  existing  under  the 

laws  of  the  state  of and  was]  engaged  in  the  business 

of  manufacturing  [or  otherwise  state  the  business]  at in 

said  county  of   [If  action  is  brought  against  a  firm, 

allege  partnership  as  in  Form  872.] 

II.  That  on  or  about  the  ....  day  of ,  19. .,  the 

plaintiff  was  employed  by  the  defendant  as  a  workman  in  de- 
fendant's factory  at  said and  was  required  to  operate 

sec.  2056;  Kans.  Gen.  Stats.  1909  4304;   S.   Dak.    Comp.   Laws   1908 

sec.  7079;  Minn.  Gen.  Stats.  1913  v.  2.  p.  443,   Chap.  215,  Laws  of 

sec.  4426;  Mo.  R.  S.  1909  sec.  3151;  1907;  Oregon  Laws  1910  sec.  5515; 

N.  Dak.  Rev.  Codes  1905  sec.  4303,  Wyo.  Comp.  Stats.  1910  sec.  4205. 


Form  1466.]  948  [Chapter  LIX. 

a  certain  dangerous  machine  in  said  factory,  with  rapidly 
revolving  and  unguarded  gearing,  called  a  planer  [or  otherwise 
describe  machinery],  and  that  plaintiff  thereupon  commenced 
to  operate  said  machine  and  continued  so  to  do  until  he 
received  the  injuries  hereinafter  described. 

III.  That  it  was  the  duty  of  the  defendant  to  provide  a 
safe  and  suitable  machine  for  plaintiff's  use  as  such  employee, 
and  to  keep  the  same  in  proper  repair,  but  that  the  said  de- 
fendant on  the  contrary  provided  a  machine  which  WcS 
defective  and  unsafe  in  this,  that  [describe  defect]  [or  if  defect 
was  the  result  of  failure  to  repair:  but  that  said  defendant,  on 
the  contrary,  neghgently  allowed  said  machine  to  become 
defective,  unsafe  and  out  of  order  in  this,  state  defect],  all  of 
which  facts  were  known  to  the  defendant  but  unknown  to  the 
plaintilT. 

IV.  That  on  the   day  of   ,   19..,  while  the 

plaintiff  was  engaged  in  the  operation  of  said  machine,  in  the 
performance  of  his  duty  and  in  the  exercise  of  due  care,  and 
wholly  on  account  of  the  defendant's  said  neghgence,  his 
right  hand  was  caught  in  said  defective  and  unguarded 
gearing  [or  otherwise  state  the  accident,  according  to  the  fact], 
and  was  severed  from  the  wrist  [allege  other  injuries  received 
and  damage]. 

V.  [Allege  notice,  if  necessary,  before  action,  as  in  Form 
1406.] 

WHEREFORE,  etc. 

1466.    The  same,  by  infant,  or  other  person  inexperienced 
in  the  use  of  tools,  and  who  received  no  warning. 

I.  [Allege  infancy  of  plaintiff,  and  appointment  of  guardian 
ad  litem,  in  case  plaintiff  is  an  infant,  as  in  Form  863.] 
II  and  III.  [Follow  I  and  II  of  last  preceding  form.] 
IV.  That  at  the  time  of  plaintiff's  said  employment  he  was 
[an  infant]  of  the  age  of  ....  years,  and  was  entirely  inex- 
perienced in  the  use  of  machinery  of  any  kind  and  ignorant  of 
the  dangers  surrounding  the  use  of  said  machine,  which  facts 
were  well  known  to  the  defendant,  and  that  it  was  the  duty  of 
the  defendant  to  instruct  the  plaintiff  as  to  the  proper  manner 
of  operating  said  machine  and  warn  him  of  the  danger  inci- 
dent to  such  operation,  but  that  the  defendant,  on  the  con- 
trary, negligently  set  the  plaintiff  at  work  upon  said  machine 


Chapter  LIX.]  949  [Form  1467. 

without  warning  or  instruction,  and  without  explanation  of 
the  danger  to  an  unskilled  workman  necessarily  resulting 
from  the  management  and  operation  of  said  machine. 

V.  [As  in  allegation  IV  of  last  preceding  form.] 

VI.  [Allege  notice,  if  necessary,  before  action  as  in  Form 
1406.] 

WHEREFORE,  etc. 

1467.    The  same,  machine  defective  and  place  unsafe.^* 

I.  [If  plaintiff  is  an  infant,  allege  infancy  and  appointment 
of  guardian  ad  litem,  as  in  Form  863.] 

II.  [Allege  defendant's  business,  etc.,  as  in  allegation  I  of 
Form  1465.] 

III.  That  in  the  month  of ,  19. .,  the  plaintiff  was 

employed  by  defendant  as  a  common  laborer  to  do  work  in 
and  about  said  factory,  and  that  defendant  had  no  experience 
in  the  use  of  machinery  and  was  ignorant  of  the  dangers 
incident  thereto,  which  fact  the  defendant  well  knew. 

IV.  That  notwithstanding  the  plaintiff's  said  ignorance 

and  inexperience,  the  defendant  on  the  ....  day  of , 

19..,  negligently  set  the  plaintiff  at  work  to  oil  certain 
rapidly  revolving  gearing  and  bearings  in  said  mill  while  in 
motion  [or  state  the  work  according  to  the  fact]  without  giving 
the  plaintiff  any  warning  or  explanation  of  the  dangers  of 
said  work  or  informing  the  plaintiff  that  the  same  was  dan- 
gerous. 

V.  That  the  said  work  was  dangerous  in  this,  that  upon 
the  said  shaft  so  revolving  there  was,  to  the  knowledge  of 
defendant,  a  set  screw  projecting  therefrom  to  the  distance  of 
an  inch,  which  screw  was  entirely  unguarded,  and  owing  to 
the  rapidity  with  which  it  revolved  and  the  insufficiency  of 
the  light  at  that  point  was  not  discernible  to  the  plaintiff  in 
the  performance  of  his  duties.  That  said  screw  was  so  located 
that  when  the  plaintifT  was  performing  his  duty  of  oiling  the 
said  shaft  as  aforesaid,  his  arm  and  sleeve  necessarily  came 
in  close  and  dangerous  proximity  to  the  same,  all  of  which 

"  For  cases  involving  this  prin-  62  N.  W.  625;  Kucera  v.  Merrill 

ciple,   see  Wolski  v.   Knapp-Stout  L.    Co.,    91    Wis.    637;   65   N.   W. 

Co.,   90  Wis.    178;   63   N.   W.  87;  374;  Klatt  v.  Foster  Lumber  Co., 

Thompson  v.  Johnston  Bros.  Co.,  92    Wis.     622;     66    N.     W.     793; 

86  Wis.  576;  57  N.  W.  298;  Guinard  Kutchcra   v.    Goodwillie,    93   Wis. 

v.  Knapp-Stout  Co.  90  Wis.  123;  448;  67  N.  W.  729. 


Form  1468.]  950  [Chapter  LIX, 

facts  the  defendant  well  knew,  but  the  plaintiff  had  no  knowl- 
edge thereof. 

VI.  That  on  the    day  of ,   19..,  while  the 

plaintiff  was  performing,  with  due  care,  his  said  duty  of  oiling 
said  bearing  and  shaft  in  motion,  and  solely  in  consequence 
of  the  negligence  aforesaid  of  the  defendant  in  failing  to  warn 
the  plaintiff  and  in  allowing  said  set  screw  to  remain  un- 
guarded, the  sleeve  of  the  plaintiff's  blouse  was  caught  by 
said  set  screw  and  his  hand  and  arm  were  wound  around  said 
shaft  and  crushed,  [state  injuries  fully,  and  allege  damage]. 

VII.  [Allege  notice,  if  necessary,  to  be  served,  as  in  Form 
1406.] 

WHEREFORE,  etc. 

1468.  By  employee  against  employer  for  injuries  from 
defective  scaffold  (adapted  from  Cadden  v.  Am. 
Steel  B.  Co.,  88  Wis.  409). 

I.  [As  in  I  of  Form  1465.] 

II.  That  on  or  about  the  ....  day  of ,  19. .,  the 

plaintiff  was  employed  by  defendant  as  a  riveter  in  the  de- 
fendant's said  factory,  and  that  on  the  ....  day  of , 

19 . .,  it  became  the  duty  of  plaintiff  in  the  course  of  his  said 
employment  to  go  upon,  and  he  did  go  upon  an  elevated 
scaffold  or  platform  adjoining  a  certain  steel  barge  then  being 
constructed  by  the  defendant  for  the  purpose  of  riveting 
bolts  upon  said  barge. 

III.  That  it  was  defendant's  duty  to  furnish  to  plaintiff 
a  safe  and  secure  platform  or  scaffold  for  the  performance  of 
his  said  work,  but  that  the  defendant  on  the  contrary  ordered 
and  permitted  two  certain  persons  who  were  incompetent 
and  unfit  to  construct  such  a  scaffold  and  known  to  be  so 
incompetent  by  the  defendant,  to  erect  and  put  said  scaffold 
in  position,  and  that  the  said  defendant  and  its  employees 
carelessly  and  negligently  constructed  and  erected  an  un- 
safe, defective  and  dangerous  scaffold,  of  all  of  which  facts 
the  plaintiff  was  ignorant. 

IV.  That  the  defendant  failed  to  warn  the  plaintiff  of  the 
unsafe  condition  of  said  scaffold,  and  that  solely  by  reason  of 
the  said  dangerous  and  defective  condition  thereof  the  same 
tipped  and  fell  while  the  plaintiff  was  upon  the  same  in  the 
performance  of  his  said  duties,  on  the  ....  day  of , 


Chapter  LIX.]  951  [Forms  1469,  1470. 

19. .,  and  the  plaintiff  was  precipitated  twenty  feet  to  the 
earth,  breaking  his  leg  [state  injuries  and  damage]. 

V.     [Allege  notice,  if  necessary,  as  in  Form  1406.] 

WHEREFORE,  etc. 

1469.  By  employee  against  employer  for  injuries  by  ob- 

vious defects  in  machinery  which  defendant  has 
promised  to  repair. 

I  and  II.     [As  in  Form  1465.] 

III.  That  in  operating  said  machine  it  was  necessary  for 
plaintiff  frequently  to  pass  and  repass  along  a  certain  pass- 
ageway on  the  east  side  thereof,  of  the  width  of  but  .... 
inches,  projecting  into  which  passageway  was  a  certain  rapid- 
ly revolving,  uncovered  and  unguarded  shingle  saw  pro- 
pelled by  steam.  That  the  presence  of  said  unguarded  saw, 
and  the  narrowness  of  said  passageway,  as  well  as  the  slip- 
pery condition  of  the  floor  thereof  by  reason  of  accumula- 
tions of  sawdust  and  bark,  caused  the  use  of  said  passageway 
to  be  unsafe  and  dangerous,  all  of  which  was  well  known  to 
the  defendant. 

IV.  That  on  the  ....  day  of ,  19. .,  the  plaintiff 

informed  the  defendant  of  the  dangerous  condition  of  said 
saw  and  passageway,  and  requested  that  the  same  be  re- 
paired and  made  safe,  and  the  defendant  then   and  there 
promised  to  cover  said  saw  and  make  said  passageway  safe, 
and  that  plaintiff,  relying  on  said  promise,  as  he  lawfully 
might,  remained  in  the  defendant's  employment  and  con- 
tinued  to   operate   said   machine   and  use   said  dangerous 
passageway  for  the  space  of  ......  hours.     That  defendant 

negligently  failed  to  cover  said  saw  or  make  safe  said  pass- 
ageway, and  in  consequence  of  such  failure  and  neglect  by 
defendant,  and  while  the  plaintiff  was  still  performing  his 
duties  in  reliance  upon  said  promise,  and  without  fault  on 
his  part,  he  fell  against  said  exposed  saw,  and  [state  injuries 
received  and  damage]. 

V.  [Allege  notice,  if  necessary,  as  in  Form  1406.] 
WHEREFORE,  etc. 

1470.  By  employee  against  employer  for  injuries  suf- 

fered by  reason  of  employment  of  incompetent 
fellow-servant. 

I  and  II.     [Allege  business  of  defendant,  and  employment  of 


Form  1471.]  952  [Chapter  LIX. 

plaintiff,  substantially  as  in  I  and  II  of  Form  1465,  omitting 
statement  that  plaintiff  was  employed  to  work  on  a  dangerous 
machine.] 

III.  That  it  was  the  duty  of  defendant  to  employ  skillful 
and  competent  fellow-servants  for  plaintiff  in  said  factory, 
but  that  defendant  negligently  employed  one  L .  .  . .  M . .  . . 
as  engineer  to  operate  the  steam  engine  and  boilers  in  said 
factory,  who  was  incompetent  in  this,  that  [state  particulars 
of  incompetency],  and  that  defendant  well  knew  the  incom- 
petency and  unfitness  of  said  L . .  . .  M .  .  .  .  when  he  em- 
ployed him,  but  that  plaintifT  was  at  all  times  wholly  igno- 
rant  thereof. 

IV.  That  on  or  about  the day  of 19 .  . ,   while 

plaintiff  was  performing  his  duties  in  said  factory,  said  L .  .  .  . 
M . . . .  so  negligently  and  unskillfully  operated  said  engine 
and  boilers,  by  reason  of  his  said  incompetence  and  unfitness, 
that  the  boiler  exploded  and  plaintiff  was  thereby  thrown  to 
the  floor  and  [state  the  injuries  received  and  damage]. 

V.  [Allege  notice,  if  necessary,  as  in  Form  1406.] 
WHEREFORE,  etc. 

1471.  By  minor  servant  against  employer,  for  injuries 
received  in  driving  dangerous  horse  (adapted 
from  Craven  v.  Smith,  89  Wis.  119). 

I.  [Allege  infancy  of  plaintiff,  and  appointment  of  guardian 
ad  litem,  as  in  Form  863.] 

II.  That  on  or    about  the  ....  day  of ,  19 .  . ,  the 

plaintiff  being  then  of  the  age  of  ...  .  years,  was  employed  by 
the  defendant  to  perform  labor  upon  the  defendant's  farm,  as 
a  common  farm  laborer,  and  that  as  a  part  of  said  employ- 
ment the  defendant  on  the  ....  day  of ,  19. .,  negli- 
gently required  the  plaintiff  to  ride  and  manage  a  certain 
horse  belonging  to  the  defendant,  attached  to  a  certain 
dangerous  machine  known  as  a  corn-stalker  and  corn-cutter, 
having  as  a  part  of  its  mechanism  sharp  and  dangerous 
knives. 

III.  That  the  said  horse  of  the  defendant  was  vicious  and 
unmanageable,  as  the  defendant  well  knew,  and  that  the 
defendant  negligently  failed  and  neglected  to  provide  the 
plaintiff  with  any  proper  appliance  or  apparatus  to  manage 
said  horse  or  retaining  his  seat  thereon,  and  also  fiailed  and 


Chapter  LIX.]  953  [Form  1472. 

neglected  to  warn  or  inform  the  plaintiff  of  the  vicious 
character  of  said  horse  and  dangerous  character  of  said 
machine,  or  of  the  precautions  necessary  to  be  used  by  the 
plaintiff  in  said  employment,  although  the  plaintiff  was 
wholly  ignorant  as  to  the  character  of  said  horse,  and  the 
dangers  attending  the  use  of  said  machine. 

IV.  That  while  the  plaintiff  was  so  engaged  in  said  em- 
ployment, and  was  riding  said  horse  with  due  care,  the  said 
horse  became  unmanageable  and  ran  away,  and  the  plaintiff 
was  thrown  from  said  horse  in  front  of  the  said  machine,  and 
was  severely  injured   [state  injuries  and  damage]. 

V.  [Allege  notice,  if  necessary,  as  in  Form  1406.] 
WHEREFORE,  etc. 

1472.  By  servant  against  employer  for  negligent  ex- 
posure to  infectious  disease  (adapted  from  Klie- 
gel  V.  Aitken,  94  Wis.  432;  69  N.  W.  67)." 

I.  That  on  or  about  the  ....  day  of ,  19. .,  the 

plaintiff  was  employed  by  the  defendant  to  render  assistance 
in  and  about  the  defendant's  house,  and  in  the  care  of  defend- 
ant's minor  daughter,  whom  the  defendant  represented  to 
the  plaintiff  to  be  ill  with  nervous  prostration. 

II.  That  in  truth  and  in  fact  the  said  daughter  had  been 
for  some  time  ill  with  typhoid  fever,  a  dangerous  and  infec- 
tious disease,  which  fact  was  unknown  to  the  plaintiff,  but 
well  known  to  the  defendant  at  the  time  aforesaid  and  the 
defendant  negligently  and  falsely  represented  and  stated  to 
the  plaintiff  that  his  daughter's  illness  was  nervous  pros- 
tration for  the  purpose  of  inducing  plaintiff  to  enter  his 
service. 

III.  That  at  the  time  of  entering  said  service  the  plaintiff 
was  ignorant  as  to  the  appearance  and  effects  of  diseases,  and 
particularly  as  to  the  appearance  and  effect  of  typhoid  fever, 
and  was  unable  to  discern  for  herself  the  true  nature  of  the 
illness  of  defendant's  daughter,  all  of  which  was  then  well 
known  to  the  defendant  and  that  the  plaintiff  by  reason  of  her 
said  ignorance,  relied  upon  defendant's  representations  as 
to  the  character  of  her  said  daughter's  disease,  and  so  re- 
lying, entered  the  service  of  the  defendant  as  aforesaid. 

"  See  Gilbert  v.  HofTman,  66  traded  small-pox  in  a  hotel  was 
Iowa,  205;  23  N.  W.  632,  where  sustained  against  the  proprietor. 
such  an  action  by  a  guest  who  con- 


Form  1473.]  954  [Chapter  LIX. 

IV.  That  while  the  plaintiff  was  in  such  service,  without 
negligence  upon  her  part,  and  on  or  about  the  ....  day  of 

,  19. .,  she,  the  plaintiff,  contracted  the  said  disease 

of  typhoid  fever  from  the  defendant's  said  daughter,  and 
became  seriously  and  dangerously  ill  and  was  confined  to 
her  bed  for  ....  weeks,  and  suffered  great  bodily  pain  and 
mental  anguish  [allege  injuries  and  damage]. 

V.  [Allege  notice  of  injury,  if  necessary,  as  in  Form  1406.] 
WHEREFORE,  etc. 


1473.  Against  one  who  has  placed  an  attractive  and  dan- 
gerous nuisance  in  the  street,  injuring  child 
playing  thereon  (adapted  from  Busse  v.  Rogers, 
120  Wis.  443;  98  N.  W.  219). 

I.  That  on  the  ....  day  of ,  19.  .,  and  for  a  long 

time  prior  thereto,  defendant  was  engaged  in  the  lumber 

business  in  the  city  of and  maintained  a  lumber  yard 

in  said  city,  adjoining  the  north  side  of street,  in  said 

city,  which  street  is  a  main  traveled  thoroughfare  and  used 
by  both  pedestrians  and  vehicles,  at  all  times  of  the  day  and 
night. 

II.  That  several  days  prior  to  the  said  ....  day  of , 

19.  .,  the  defendant  caused  a  large  number  of  timbers  to  be 

piled  within  the  limits  of  said street  adjoining  said 

lumber  yard,  said  pile  extending  lengthwise  of  said  street  and. 
being  about  four  feet  high;  that  defendant  negligently  and 
carelessly  placed  a  large  timber,  about  14  feet  long  and  12  or 
14  inches  square,  upon  the  top  of  said  pile  of  said  timbers,  in 
such  position  that  upon  the  slightest  application  of  force 
said  timber  was  liable  to  lose  its  position  and  fall  over  the 
edge  of  said  pile;  and  that  the  defendant  negUgently  and 
carelessly  allowed  said  timber  to  remain  and  be  in  such  posi- 
tion until  the  time  of  the  injury  hereinafter  described,  know- 
ing the  position  of  said  timber  to  be  unsafe  and  dangerous. 

III.  That  there  were  at  all  times  many  families  living  in 
the  vicinity  of  said  lumber  yard,  and  that  the  children  of  said 
families  were  accustomed  to  pass  and  repass  on  the  north  side 

of  said street  and  along  said  lumber  yard,  and  were 

accustomed  to  play  about  the  same,  to  the  knowledge  of  the 
defendant. 


Chapter  LIX.]  955  [Forms  1474,  1475. 

IV.  That  on  the  said  ....  day  of ,  19 . .,  while  the 

plaintiff  and  other  children  were  standing  and  playing  upon 
the  said  pile  of  timber,  the  said  timber  upon  the  top  of  said 
pile  became  loosened  and  lost  its  equilibrium  and  fell  upon 
the  plaintiff,  causing  great  injuries  to  her  arm,  and  [state 
injuries  and  damage]. 

V.  [Allege  notice  of  injury,  if  necessary,  as  in  Form  1406.] 
WHEREFORE,  etc. 

1474.  Against  druggist  for  negligently  putting  np  a  poi- 

sonous drug  (adapted  from  Davis  v.  Guarnieri, 
45  0hioSt.  470;15N.  E.  350). 

I.  That  at  the  times  hereinafter  mentioned  the  defendant 
was  engaged  in  the  business  of  selling  drugs  and  filling  medical 
prescriptions  in  the  city  of in  said  state. 

II.  That  on  the  ....  day  of ,  19 . . ,  the  plaintiff  ap- 
plied to  the  defendant  to  put  up  and  sell  to  him  ....  cents 
worth  of  oil  of  sweet  almonds,  to  be  used  by  plaintiff  as  a 
physic,  and  that  the  defendant  undertook  and  pretended  to 
fill  said  order,  but  carelessly  and  negligently  put  up  and 
delivered  to  the  plaintiff  instead  of  oil  of  sweet  almonds,  a 
certain  poisonous  drug  known  as  oil  of  bitter  almonds,  and 
negligently  failed  to  mark  the  bottle  or  package  in  any  man- 
ner so  as  to  indicate  its  dangerous  or  poisonous  character. 

III.  That  the  plaintiff,  believing  the  drug  so  delivered  to 
him  to  be  oil  of  sweet  almonds,  without  fault  or  negligence  on 
his  part  swallowed  a  part  of  the  same  and  was  thereby  made 
violently  ill  and  [state  injuries  and  damages]. 

IV.  [Allege  notice,  if  necessary,  as  inform  1406.] 
WHEREFORE,  etc 

1475.  For  negligently  leaving  horses  unhitched  in  the 

street. 

I.  That  on  the  ....  day  of ,  19. .,  the  defendant, 

being  the  owner  and  in  possession  of  a  certain  span  of  horses 

and  wagon,  drove  the  same  onto street  in  the  city  of 

and  carelessly  and  negligently  left  the  same  on  said 

street  without  hitching  or  tying  said  horses  in  any  manner 
and  without  leaving  any  one  in  charge  thereof. 

II.  That,  through  the  negligence  of  said  defendant  in  not 
securing  the  same,  said  horses  ran  away  with  said  wagon,  and 


Form  147G.]  956  [Chapter  LIX. 

struck  and  collided  against  the  buggy  of  the  plaintiff,  in  which 
he  was  riding  in  said  street,  and  overturned  the  same  and  in- 
jured the  plaintiff  [state  injuries  and  damage]. 

III.  [Allege  notice,  if  necessary,  as  in  Form  1406.] 

IV.  [//  there  be  a  city  ordinance  prohibiting  the  leaving  of 
horses  in  the  street  unhitched  it  should  be  pleaded  and  its 
violation  alleged.] 

WHEREFORE,  etc. 

1476.  Against  superintendent  of  hospital  for  improper 
treatment  of  a  patient  (sustained  in  Drefahl  v. 
Connell,  85  Wis.  109;  55  N.  W.  160). 

I.  That  during  all  the  time  from ,  19 . . ,  to , 

19.  .,  the  defendant  held  the  office  of  superintendent  of  the 

county  hospital  of  the  county  of and  that  during  all  of 

that  time  the  plaintiff  was  lawfully  an  inmate  of  said  hos- 
pital, and  was  afflicted  with  a  disease  affecting  his  legs. 

II.  That  during  all  of  said  time  it  was  the  duty  of  said  de- 
fendant, as  such  superintendent,  to  furnish  to  the  plaintiff, 
as  such  inmate,  a  physician  of  reasonable  and  sufTicient  skill 
and  experience,  and  such  skillful  and  appropriate  medical 
treatment  as  the  nature  of  the  plaintiff's  case  demanded,  to 
furnish  the  plaintiff  with  food  of  the  kind  best  suited  to  his 
debilitated  condition,  to  maintain  proper  discipline  among 
the  inmates,  officers,  and  employees  of  the  hospital,  so  that 
the  plaintiff  might  receive  proper  food  and  careful  and  con- 
siderate treatment;  that  during  all  of  said  time  the  defendant, 
as  such  superintendent,  was  well  and  sufficiently  provided 
with  all  the  assistant  physicians,  nurses,  cooks,  attendants, 
and  servants  and  food  and  medicines  required  for  the  per- 
formance of  his  said  duties,  and  had  full  control  over  them; 
that  the  defendant  had  full  control  of  the  furnishing  of  sup- 
plies of  every  kind  for  said  hospital,  and  was  in  evefy  way 
able  to  perform  his  said  duties  as  such  officer  towards  the 
plaintiff. 

III.  That,  disregarding  his  said  duties,  the  defendant  neg- 
lected to  give  to  the  plaintiff  sufficient  and  proper  medical 
attendance;  that  he  failed  and  neglected  to  provide  for  the 
plaintiff  sufficient  or  suitable  food,  but  furnished  him  food  of 
a  very  coarse  and  indigestible  kind,  w'holly  unsuitable  for  his 
condition,  and  frequently  furnished  him  ill-cooked  and  un- 


Chapter  LIX.]  957  [Form  1477. 

wholesome  food,  by  the  use  of  which  the  plaintiff  became 
greatly  debilitated  and  suffered  great  pain,  which  is  one  of  the 
causes  of  the  plaintiff's  failure  to  recover  his  health;  that  the 
defendant  wholly  failed  to  maintain  proper  discipline, 
whereby  at  meal  times  the  stronger  and  more  active  inmates 
would  rush  to  the  table  first,  and  take  for  themselves  all  the 
best  portions  of  the  food;  that  the  plaintiff,  being  lamed  and 
weak  was  frequently  prevented  from  getting  to  the  table  in 
time  to  obtain  proper  food,  but  had  to  be  content  with  the 
leavings,  which  were  wholly  unsuited  to  his  physical  condi- 
tion; that  the  defendant  wholly  failed  and  neglected  to  exer- 
cise a  proper  supervision  over  his  subordinates,  but  suffered 
them  to  grossly  neglect  their  respective  duties  towards  the 
plaintiff,  and  hence  the  plaintiff  did  not  have  the  medical 
treatment  his  condition  required,  and  continued  to  suffer, 
and  did  sufTer,  and  does  still  suffer,  great  pain,  both  mentally 
and  bodily,  and  continues  ill  from  said  sickness;  that  by 
reason  of  such  neglect  by  the  defendant  the  disease  with 
which  the  plaintiff  was  afflicted  grew  much  worse;  that  his 
body  was  much  weaker  and  his  general  health  greatly  injured, 
that  he  suffered  great  bodily  pain  and  mental  anguish;  that 
his  disease  has  become  so  seated  that  he  can  never  be  cured, 
and  will  remain  an  invalid,  and  will  be  wholly  dependent 
upon  charity  for  support;  and  that  he  is  a  man  about  forty 
years  of  age,  and  has  thereby  sustained  damage  in  the  sum 

of dollars. 

WHEREFORE,  etc. 

1477.  By  tenant  against  landlord  for  leasing  infected 
dwelling  (adapted  from  Minor  v.  Sharon,  112 
Mass.  477). 

I.  That  on  and  prior  to  the  ....  day  of ,  19.  ., 

the  defendant  was  the  owner  of  a  certain  dwelhng  house  in 

the  city  of known  as  No on street,  and 

that  prior  to  said  date  a  number  of  cases  of  smallpox  had 
occurred  in  said  dwelling  and  had  infected  the  same,  to  the 
knowledge  of  the  defendant. 

II.  That  on  the  ....  day  of ,  19. .,  the  defendant 

leased  said  dwelling  house  to  the  plaintiff  as  a  residence  for 
himself  and  his  family  and  the  plaintiff  with  his  family  there- 
upon moved  into  said  house;  that  the  plaintiff  was  wholly 


Forms  1478,  1479.]  958  [Chapter  LIX. 

ignorant  of  the  infected  and  dangerous  condition  of  said 
house  at  said  time,  and  that  the  defendant  negUgently  failed 
to  inform  the  plaintiff  that  the  said  house  was  so  infected  and 
failed  to  take  any  precaution  against  the  exposure  of  the 
plaintiff  to  said  disease,  and  that  the  plaintiff  by  reason  of 
residing  in  said  infected  house  was  made  sick  with  said 
disease,  and  was  confined  to  his  bed  for  ....  weeks,  and 
[state  injuries  and  damage]. 
WHEREFORE,  etc. 

1478.  Outline  of  complaint  against  owner  of  apartment 

or  tenement  house  for  injury  resulting  from  de- 
fective stairway  or  porch. 

I.  [Allege  defendant's  ownership  of  the  building  at  and 
prior  to  the  time  of  the  accident  definitely  describing  the  build- 
ing.] 

II.  [Allege  that  the  same  was  occupied  by  tenants  of  the 
defendant  and  that  defendant  had  provided  a  stairway  porch  or 
other  convenience  according  to  the  fact  for  the  use  of  the  tenants 
and  all  persons  properly  going  to  or  from  the  apartments,  or 
if  it  was  only  for  the  use   of  certain   tenants   state   the  fact.] 

III.  [Allege  that  prior  to  the  accident  the  defendant  negli- 
gently allowed  the  stairway  or  porch  to  become  unsafe  stating 
how,  and  that  the  condition  was  known  to  the  defendant  or 
would  have  been  known  had  the  defendant  exercised  reasonable 
care  and  diligence.] 

IV.  [Allege  the  accident  giving  such  details  as  are  necessary 
to  show  that  it  was  caused  by  the  defective  conditions  above 
referred  to.  Allege  also  the  injuries  to  the  plaintiff  and  the 
damage  resulting.] 

V.  [.4  liege  notice  of  injury  if  necessary  as  in  Form  1406.] 
WHEREFORE,  etc. 

1479.  For  injury  to  shade  trees  by  gas. 

I.  [Allege  incorporation  of  defendant  as  in  Form  848.] 

II.  That  at  the  times  hereinafter  mentioned  the  defend- 
ant owned  and  operated  a  gas  plant  in  the  city  of , 

state  of and  furnished  fuel  and  illuminating  gas  to  the 

residents  of  said  city  by  means  of  pipes  laid  under  the  sur- 
face of  the  streets  of  said  city. 


Chapter  LIX.]  959  [Forms  1480,  1481. 

III.  That  during  the  year and  for  a  long  time  prior 

thereto  the  plaintiff  owned  and  occupied  the  premises  known 

as  No street  in  said  city  and  owned  six  large 

trees  of  the  value  of dollars  growing  in  the 

curb  or  boulevard  along  the  sidewalk  in  front  of  said  prem- 
ises, 

IV.  That  one  of  the  defendant's  gas  mains  was  at  that 
time  maintained  in  the  street  in  front  of  plaintiff's  said 
premises  and  near  said  trees  and  that  during  said  year  the 
defendant  negligently  allowed  gas  to  escape  from  said  pipe 
and  to  diffuse  itself  through  the  earth  reaching  the  roots  of 
said  trees  whereby  the  same  were  killed  to  plaintiff's  damage 
dollars. 

WHEREFORE,  etc. 

1480.  Outline  of  complaint  for  injuries  sustained  from 

electric  wire  unguarded  on  the  street. 

I.  [Allege  the  corporate  existence  of  the  defendant  electric 
company  and  its  business.] 

II.  [Allege  the  existence  of  one  of  its  electric  lines  upon  the 
street  where  the  accident  happened.] 

III.  [Allege  the  circumstances  of  the  accident,  showing  that 
the  plaintiff  was  lawfully  using  the  street  and  in  the  exercise  of 
ordinary  care,  and  came  in  contact  with  the  electric  wire  charged 
with  a  heavy  current.] 

IV.  [Allege  the  negligence  of  the  defendant  in  allowing  the 
wire  lo  remain  upon  or  close  to  the  ground  and  state  for  how  long 
a  time  that  condition  existed.] 

V.  [Allege  the  injuries  received  by  the  plaintiff  and  the 
amount  of  damage.] 

VI.  [Allege  notice  of  the  injury,  if  necessary,  as  in  Form 
1406.] 

WHEREFORE,  etc. 

1481.  Outline  of  complaint  for  negligent  failure  to  shut 

off  gas  meter. 

I.  [Allege  that  the  defendant  is  a  corporation  as  in  Form 
848,  and  that  it  was  engaged  in  the  business  of  selling  gas  and 
furnishing  gas  meters  to  its  customers.] 

II.  [Allege  the  plaintiff's  occupation  of  a  house  in  the  city 
and  the  fact  that  defendant  maintained  a  gas  meter  therein.] 


Form  1482.]  960  [Chapter  LIX. 

III.  [Allege  the  removal  by  the  defendant  of  said  meter  and 
the  negligent  failure  to  shut  off  the  gas  pipe  or  take  proper  pre- 
cautions to  prevent  the  escape  of  gas  in  the  basement  of  the 
house,  whereby  the  gas  escaped  in  large  quantities  and  was 
diffused  through  the  house.] 

IV.  [Allege  that  the  plaintiff  being  unaware  of  the  presence 
of  the  gas  lighted  a  match  in  one  of  the  rooms  of  the  house  and 
by  reason  of  the  negligence  of  the  defendant  a  violent  explosion 
occurred.] 

V.  [Allege  injuries  and  damage.] 

VI.  [Allege  notice  of  the  injury,  if  necessary,  as  in  Form 
1406.] 

WHEREFORE  [demand  of  money  judgment]. 


1482.    Against  street  car  company  for  colliding  with  au- 
tomobile. 

I.  That  at  the  times  hereinafter  named  the  defendant 
was  and  still  is  a  corporation  organized  and  existing  under 

and  by  virtue  of  the  laws  of and  operated  an  electric 

street  railway  on street  in  the  city  of 

II.  That  on   the.... day  of ,    19..,   the   plaintiff 

was  driving  an  automobile  easterly  across  the  said 

street  [or  northerly  along  said  street  as  the  case  may  be]  and 
at  the  same  time  the  defendant  drove  one  of  its  street  cars 
southerly  along  said street  near  said  intersection. 

III.  That  the  employees  of  the  defendant  in  charge  of 
said  car  then  and  there  negligently  operated  and  managed 
said  car  in  this,  first,  that  they  drove  said  car  at  a  dangerous 
and  excessive  speed,  to-wit,  at  the  rate  of . . .  .miles  per 
hour;  second  [state  other  negligent  acts  or  defaults]  and  that 
by  reason  of  the  negligent  operation  of  said  car  as  aforesaid 
it  struck  the  plaintiff's  said  automobile,  throwing  the  plain- 
tiff out  upon  the  ground  with  great  violence  [state  injuries 
and  damages]. 

IV.  That  said  automobile  was  of  the  value  of 

dollars  and  was  the  property  of  the  plaintifT  and  was  ren- 
dered  worthless    [or    damaged    to    the   extent    of 

dollars]. 

V.  [Allege  notice  of  the  injury  if  necessary  as  in  Form 
1406.] 


Chapter  LIX.]  961  [Forms  1483,  1484. 

1483.    For  injury  to  traveler  on  highway  from  explosion 
on  premises  adjoining  highway. 

I.  That  at  the  times  hereinafter  mentioned  there  existed 

a  highway  in  the  city  of much  travelled  at  all  times  of 

night  and  day  called ,  extending  from to 

II.  That  on  and  prior  to  the.... day  of 19.., 

the  defendant  owned  [describe  land]  adjoining  said  highway 
and  operated  upon  said  land  [state  the  industry  whether  it  be  a 
mine  or  any  other  industry  in  which  the  explosion  occurred] 
and  that  in  the  course  of  the  operation  of  such  industry  de- 
fendant was  accustomed  to  explode  large  quantities  of  dyna- 
mite whereby  rocks  and  ore  were  hurled  to  great  distances 
unless  properly  protected. 

III.  That  on  the  day  last  named  there  were  no  protections 
or  guards  existing  between  said  mine  and  said  highway  and 
that  the  plaintiff  was  on  said  day  lawfully  walking  along  said 
highway  and  that  while  he  was  so  walking  the  defendant 
negligently  exploded  several  charges  of  dynamite  in  said 
mine  throwing  large  pieces  of  rock  and  ore  through  the  air 
over  and  upon  said  highway  one  of  which  pieces  struck  the 
plaintiff. 

IV.  That  the  defendant  was  then  and  there  negligent 
in  this  [state  negligence,  whether  in  failure  to  guard  the  high- 
way, using  excessive  charges,  failure  to  cover  and  weight  down 
the  ground,  failure  to  give  warning  or  in  other  respects,  or  in 
all  of  them]  and  that  the  plaintiff  was  struck  and  injured  by 
reason  of  such  negligence. 

V.  [Allege  injuries  and  damage.] 

VI.  [Allege  notice  of  the  injury  if  necessary  as  in  Form 
1406.] 

WHEREFORE,  etc. 

148i4.    By  pedestrian  run  down  in  street  against  automo- 
bile owner. 

I.     That  on  the. . .  .day  of ,  19. .,  the  plaintiff  was 

crossing  a  public  highway  known  as street  in  the  city 

of near  [state  the  place  with  reasonable  certainty]  and 

that  at  the  same  time*  the  defendant  was  driving  an  auto- 
mobile  northward   along  said street  near  the   place 

where  the  plainlifT  was  crossing  the  same. 
61 


Forms  1485,  118^.]  962  [Chapter  LIX. 

II.  That  the  defendant  then  and  there  negligently  drove 
and  managed  said  automobile  in  this  that  he  drove  the  same 
at  an  excessive  speed  to-wit,  at  the  rate  of ... .  miles  per 
hour,  and  that  he  failed  to  sound  the  horn,  or  give  any  signal 
of  its  approach,  and  failed  to  slow  down  as  he  approached  the 
plaintiff,  [if  any  other  act  of  negligence  is  relied  on  state  it]. 

III.  That  by  reason  of  the  negligent  driving  and  man- 
agement of  said  automobile  by  the  defendant  as  aforesaid 
the  same  then  and  there  struck  the  plaintifT  and  struck 
the  plaintiff  and  knocked  him  down  [state  injuries]  to  plain- 
tiff's damage dollars. 

IV.  [Allege  notice  of  the  injury,  if  necessary,  as  in  Form 
1406.] 

WHEREFORE,  etc. 

1485.  The  same,  when  automobile  was  driven  by  ser- 

vant. 

I.  [Same  as  I  in  last  preceding  form  to  the*  and  continuing]: 
a  servant  of  the  defendant  in  the  course  of  his  employment 
and  while  transacting  the  defendant's  business  was  driving 
an  automobile  northward  along  said  street  near  the  place 
where  the  plaintifT  was  crossing  the  same. 

II  and  III.  [As  in  II  and  III  of  last  preceding  form  in- 
serting the  words  ''defendant's  servant"  in  place  of  the  word 
defendant.] 

IV.  [Allege  notice  of  the  injury  if  necessary  as  in  Form 
1406.] 

WHEREFORE,  etc. 

1486.  Outline  of  complaint  for  negligence  in  failing  to 

adopt  rules  for  the  safety  of  employees. 

I.  [Allege  employment  of  the  plaintiff  by  the  defendant  at 
and  prior  to  the  time  of  the  accident.] 

II.  That  defendant's  business  consisted  of  [describe 
business  fully  showing  such  facts  with  regard  to  its  complicated 
and  dangerous  character  and  number  of  servants  employed 
that  it  would  appear  to  be  dangerous  if  no  rules  for  safety  in 
its  conduct  were  adopted]. 

III.  [Describe  plaintiff's  duties  showing  if  possible  why 
rules  were  necessary  to  protect  him.] 


Chapter  LIX.]  963  [Form  1487. 

IV.  That  on  the day  of ,  19 .  .  while  plaintiff 

in  the  course  of  his  employment  was  [state  what  plaintiff  was 
doing  and  what  happened  showing  the  fact  that  it  was  due  to 
lack  of  rules,  also  state  the  injuries  received  and  the  damages 
claimed]. 

V.  That  it  was  the  defendant's  duty  to  adopt  and  enforce 
rules  for  the  government  and  guidance  of  its  servants  in  said 
work  and  especially  a  rule  or  rules  providing  [name  the  rule 
needed  to  prevent  such  an  accident]  but  that  the  defendant 
negligently  failed  to  adopt  or  enforce  such  rules,  by  reason 
of  which  neglect  the  plaintiff  was  injured  as  aforesaid. 

VI.  [Allege  notice  of  the  injury,  if  necessary,  as  in  Form 
1406.] 

WHEREFORE,  etc. 


1487.    Outline  of  complaint  for  providing  unsafe  place 
to  work. 

I.  [Allege  the  defendant's  business  at  the  time  of  the  accident 
and  that  plaintiff  was  in  the  defendant's  employ  in  its  factory 
or  place  of  business.] 

II.  That  in  the  discharge  of  the  plaintiff's  duties  in  said 
factory  it  was  necessary  for  the  plaintiff  to  work  [or  the  de- 
fendant required  the  plaintiff  to  work]  [state  the  place]:  that 
said  place  was  not  a  reasonably  safe  place  to  work  in  this 
that  [state  in  what  the  danger  consisted]  of  all  of  which  the 
defendant  had  knowledge. 

III.  That  on  the  ....  day  of 19. .  while  plaintiff 

was  working  in  said  place  as  servant  of  the  defendant  and  in 
the  regular  course  of  his  employment  [describe  the  accident 
fully  and  in  such  manner  that  it  will  appear  that  it  was  proxi- 
mately caused  by  the  unsafe  character  of  the  place  of  employ- 
ment, also  set  forth  the  injuries  and  the  damages]. 

IV.  That  the  plaintiff  was  injured  as  aforesaid  by  reason 
of  the  said  negligence  of  the  defendant  in  providing  for  the 
plaintiff  said  unsafe  and  dangerous  place  to  work. 

V.  [Allege  notice  of  the  injury,  if  necessary,  as  in  Form 
1406.] 

WHEREFORE,  etc. 


Forms  1488,  1489.]  964  [Chapter  LIX. 

1488.  For  damages  resulting  from  fall  of  a  wall  negli- 

gently allowed  to  stand  after  a  fire. 

I.  [Allege  the  plaintiff's  ownership  of  the  property  injured 
by  the  falling  wall  describing  the  property.] 

II.  [Allege  the  defendant's  ownership  of  adjoining  property 
describing  same  and  describing  the  building  thereon  prior  to 
the  fire.] 

III.  That  on  the day  of ,  19. .,  the  defend- 
ant's said  building  was  totally  destroyed  by  fire,  save  that  the 
north  wall  of  the  same  adjoining  plaintiff's  said  building  was 
left  standing  unsupported  for  ....  days  after  the  happening 
of  said  fire. 

IV.  That  on  the day  of ,  19 . .  the  said  wall  so 

left  standing,  fell  upon  the  plaintiffs  said  building;  totally 
destroying  the  same  [or  otherwise  state  the  injuries  according 
to  the  fact]. 

V.  That  the  defendants  knew  or  ought  to  have  known 
that  said  wall  was  very  greatly  weakened  by  said  fire  and 
was  likely  to  fall  at  any  time  unless  supported  or  braced, 
but  notwithstanding  the  premises  the  said  defendants  neg- 
ligently allowed  the  said  wall  to  stand  without  supports  or 
braces  and  by  reason  of  said  neghgence  the  said  wall  fell  as 
aforesaid. 

VI.  [Set  forth  the  damages.] 

VII.  [Allege  notice  of  the  injury  if  necessary  as  in  Form 
1406.] 

WHEREFORE,  etc 

1489.  Against  agricultural  society  for  injuries  from  fall 

of  grand  stand. 

I.  [Allege  incorporation  of  defendant  as  in  Form  848.] 

II.  [Allege  the  purposes  of  the  corporation  and  that  it 
held  its  annual  fair  at  the  time  and  place  of  the  accident.] 

III.  [Allege  that  plaintiff  paid  the  admission  fee  charged 
and  attended  the  fair  on  the  day  of  the  accident  in  order  to 
witness  the  exhibition  of  stock  and  farm  products.] 

IV.  That  the  said  defendant  had  theretofore  prepared 
and  erected  a  grand  stand  upon  its  said  fair-grounds  for  the 
accommodation  of  its  patrons  and  persons  attending  said 
fair,  and  negligently  constructed  and  erected  the  same  and 
used  therein  unsound  and  weak  lumber,  which  w^as  not  suffi- 


Chapter  LIX.]  965  [Form  1490. 

ciently  strong  to  bear  the  weight  of  persons  who  might  be 
seated  thereon. 

V.  That  the  plaintiff,  after  entering  said  fair-grounds  on 

the  ....  day  of  19. .,  was  seated  upon  one  of  the 

seats  of  said  grand  stand  and  the  same  being  unsound  and 
weak  as  aforesaid  broke  and  caused  the  plaintiff  to  fall  the 
distance  of  about  ....  feet,  without  any  fault  or  negligence 
on  her  part,  whereby  the  plaintiff  was  greatly  injured  in  her 
person  in  this,  to-wit  [state  injuries  and  damage]. 

VI.  [Allege  notice  if  necessary  as  in  Form  1406.] 
WHEREFORE,  etc. 


1490.    Against  street  railroad  company  for  running  down 
passenger  who  had  just  alighted  from  a  car. 

I.  [Allege  corporate  character  of  defendant  as  in  Form  848, 
also  that  it  was  a  common  carrier  of  passengers  on  the  streets  of 
the  city  specifying  particularly  the  street  where  the  accident 
happened.] 

II.  That  on  the day  of ,  19.  .,  at  about 

o'clock  p.  m.,  the  plaintiff  was  a  passenger  on  a  north  bound 

car  of  the  defendant  on  said street  which  car  stopped 

at  the  crossing  of street  for  the  purpose  of  receiving 

and  discharging  passengers. 

III.  That  the  plaintiff  desiring  to  leave  said  car  at  said 
crossing  got  off  the  said  car  on  the  right  side  going  north 
was  struck  by  a  south  bound  car,  which  approached  without 
any  signal  or  warning,  at  a  dangerous  and  excessive  rate  of 
speed,  hurhng  plaintiff  violently  upon  the  pavement  of  the 
street,  seriously  cutting  and  wounding  him  on  the  head  and 
bruising  and  injuring  him  in  the  back,  so  that  he  was  rendered 
unconscious,  lame  and  sick,  and  unable  to  leave  his  room  or 
attend  to  his  business,  and  was  obliged  to  expend  one  hun- 
dred dollars  for  medical  and  other  services  in  attempting  to 
get  cured,  and  is  still  suffering  from  said  injuries,  and  is  per- 
manently injured,  to  his  damage  in  the  sum  of dol- 
lars. 

IV.  That  the  defendant  company  was  running  said  south 
bound  car  at  a  dangerous  and  reckless  rate  of  speed,  and  that 
the  motorman,  in  charge  thereof,  failed  to  sound  the  gong 
or  give  any  signal  or  warning  to  plaintiff,  and  thereby  caused 


Forms  1491,  1492.]  9G6  [Chapter  LIX. 

plaintiff  to  be  struck  as  aforesaid,  without  plaintiff's  fault. 
V.     [Allege  notice  if  necessary  as  in  Form  1406.] 
WHEREFORE,  etc. 

1491.  Against  railroad  company  for  starting  a  train  be- 

fore passenger  had  time  to  alight. 

I.  [Allege  incorporation  of  defendant  as  in  Forms  848  or 
849.] 

II.  [Allege  that  the  defendant  was  at  the  date  of  the  accident 
a  common  carrier  and  operated  a  railway  between  certain 
points  for  the  carriage  of  passengers  for  hire.] 

III.  [Allege  that  on  the  day  of  the  accident  the  plaintiff 
purchased  a  ticket  at  the  defendant's  station  entitling  him  to 
passage  on  defendant's  road  to  the  point  of  destination  and 
boarded  one  of  defendant's  trains  and  was  received  as  a  pas- 
senger thereon.] 

IV.  That  upon  the  arrival  of  said  train  at  its  said  desti- 
nation, to-wit ,  the  same  was  stopped  at  the  defend- 
ant's passenger  station  and  the  plaintiff  proceeded  with  due 
care  to  alight  from  said  train  when  the  servant  of  the  said 
company  who  had  charge  of  the  said  train,  negligently  and 
carelessly  started  the  same  before  the  plaintiff  had  time  to 
get  clear  and  out  of  the  way  thereof,  whereby  the  plaintiff 
was  thrown  and  fell  between  the  platform  and  the  said  train 
without  fault  or  negligence  on  his  part. 

V.  That  by  said  fall  and  the  movement  of  the  said  train 
plaintiff  was  cut  and  bruised  and  was  crushed  between  the 
platform  and  the  said  train  and  was  seriously  injured,  and  in 
consequence  thereof  the  plaintiff  was  for  six  months  ill  and 
in  suffering  and  was  unable  to  attend  to  his  said  business  for 
twelve  months,   and  incurred  medical  and  other  expenses 

amounting  to dollars,  [or  otherwise  state  the  injuries 

and  damages]. 

VI.  [Allege  giving  of  notice  if  necessary  as  in  Form  1406.] 
WHEREFORE,  etc. 

1492.  Against  a  railroad  company  for  violent  ejection 

from  freight  train  in  motion. 

I  and  II.     [As  in  last  preceding  form.] 

III.     That    on    the day    of 19..,    at , 

the  plaintiff  boarded  a  freight  train  of  the  defendant  in  order 


Chapter  LIX.]  967  [Form  1492. 

to  ride  thereon  as  a  passenger,  [and  offered  to  pay  his  fare 

thereon  to  the  station  of ,  which  the  conductor  in 

charge  of  said  train  refused]. 

IV.  That  while  said  train  was  in  motion  and  running  at 
the  rate  of . . .  .miles  per  hour  at  a  point  [describe  same]  [the 
same  not  being  a  usual  stopping  place  nor  near  any  dwelling 
house]  the  conductor  in  charge  of  said  train  wantonly  and 
willfully  assaulted  plaintiff,  and  threw  plaintiff  from  said 
train,  and  caused  him  to  fall  between  the  cars,  by  which  wan- 
ton and  willful  act  of  said  conductor,  he  was  thrown  under 
the  wheels  of  the  moving  train;  his  leg  was  broken  in  three 
places  and  mangled  and  crushed,  his  right  foot  was  greatly 
injured,  his  left  foot  was  mangled  and  partly  cut  off,  and  his 
head  and  back  and  shoulders  were  greatly  brused  and  hurt 
[or  otherwise  state  the  injuries  according  to  the  fact]. 

V.  That  by  reason  of  the  aforesaid  injuries  plaintiff  has 
suffered  and  still  suffers  great  mental  anguish  and  physical 
pain,    [State  damage.] 

VI.  [Allege  giving  of  notice  if  necessary  as  in  Form  1406.] 
WHEREFORE,  etc. 


CHAPTER  LX. 


COMPLAINTS  IN  ACTIONS  FOR  NUISANCE. 


1493.  Complaint  in  action  at  law 

for  abatement  of  nuisance 
from  ofTensive  trade,  and 
to  recover  damages  there- 
for. 

1494.  The  same,  another  form. 

1495.  The  same,  with  prayer  for  in- 

junction. 

1496.  The  same,  to  abate  a  soap 

factory. 

1497.  The  same,  against  a  contin- 

uer  of  a  nuisance. 

1498.  The    same,    to    abate    gas 

works. 

1499.  The  same,  to  abate  a  brick- 

yard. 

1500.  Allegation  of  nuisance  from 

rendering  establishment. 

1501.  Allegation  of  nuisance  from 

noise  and  vibration  of 
heavy  machinery. 

1502.  Allegation  of  nuisance  from 

operation  of  limekiln. 

1503.  Allegation    of    nuisance    by 

house  of  prostitution. 
1504-  For    diverting    water    from 

plaintilTs  mill. 
15(K.  For  erecting  a  dam,  causing 

backwater. 

1506.  Against    erector    of    a    dam 

which  is  a  nuisance. 

1507.  The  same,  where  the  land  has 

been  transferred. 

1508.  Allegation  of  special  damage 

to  plaintiff's  land. 

1509.  For    obstructing    a    private 

way. 


1510.  For  damage  from  bursting  of 

a  reservoir. 

1511.  For  obstructing  street,  caus- 

ing injury  to  private  per- 
son. 

1512.  Complaint  in  equity  to  en- 

join nuisance  caused  by 
polluting  waters  of  a 
stream  by  refuse  of  a 
starch  factory. 

1513.  Complaint  in  equity  by  a  city 

to  enjoin  erection  of  a 
building  in  a  public  street. 

1514.  Complaint  in  equity  to  en- 

join threatened  nuisance 
by  deposit  of  garbage  on 
neighboring  lands. 

1515.  By  town  to  enjoin  erection  of 

a  fence  in  highway. 
1516    For  injunction  against  foul- 
ing a  watercourse.     (Con- 
necticut Practice  Act.) 

1517.  Outline  of  complaint  for  ob- 

struction of  a  natural 
watercourse  by  a  railroad 
embankment. 

1518.  For  flowing  water  from  ad- 

joining roof  on  plaintiff's 
premises. 

1519.  Against  city  for  maintenance 

of  insufficient  sewer. 

1520.  For      maintaining      private 

drain  causing  injury. 

1521.  For  diverting  water  from  a 

stream  which  plaintiff  had 
used  for  irrigation  pur- 
poses. 


The  statutes  of  many  of  the  states  covered  by  this  work 
define  a  nuisance  and  provide  for  the  abatement  thereof  and 


Chapter  LX.]  969  [Form  1493. 

the  recovery  of  damages  therefor  at  the  suit  of  a  private  per- 
son specially  injured  by  action  at  law,  in  which  an  injunction 
may  also  be  obtained.  Wis.  Stats.  1913  sec.  3180;  Cal.  C.  G. 
P.  1906  sec.  731;  Idaho  Rev.  Codes  1908  sec.  4529;  Minn. 
Gen.  Stats.  1913  sec.  8085;  Iowa  Ann.  Code  1897  sec.  4302; 
N.  Dak.  Rev.  Codes  1905  sec.  7538;  S.  Dak.  C.  G.  P.  1908 
sec.  692;  Okla.  Comp.  Laws  1909  sec.  4751;  Oregon  Laws 
1900  sec.  341;  Utah  Comp.  Laws  1907  sec.  3506;  Wash. 
Rem.  and  Bal.  Code  1910  sec.  943. 

This  statutory  remedy  by  action  at  law  does  not,  however, 
abrogate  the  remedy  in  equity  if  the  injury  be  irreparable,  or 
constant,  and  productive  of  interminable  litigation.  Wis. 
Stats.  1913  sec.  3180;  Bushnell  v.  Robeson,  62  Iowa,  540; 
17  N.  W. 


1493.  Complaint  in  action  at  law  for  abatement  of  nui- 
sance from  offensive  trade,  and  to  recover  dam- 
ages therefor. 

I.     That  the  plaintiff  is,  and  for  more  than years 

last  past  has  been  the  owner  of  the  following  described 
premises  [describe  same]  and  during  that  time  has  occupied 
and  now  occupies  the  same  as  his  homestead. 

XL     That  the  defendant  for  more  than years  last 

past  has  been  and  still  is  in  possession  of  certain  premises 
contagious  to  [or,  in  the  immediate  vicinity  of]  the  said 
premises  of  the  plaintiff  [and  about feet  distant  there- 
from]. 

III.     That  said  defendant,  on  or  about  the day  of 

,  19.  .,  erected  on  his  said  premises  a  slaughter-house, 

and  thereafter  has  *  kept  and  slaughtered,  and  now  keeps 
and  slaughters,  large  numbers  of  cattle  in  said  slaughter- 
house, causing  noxious  and  offensive  smel's  to  come  there- 
from, tainting  and  corrupting  the  air  in  and  about  the  plain- 
tiff's premises,  so  as  to  render  the  dwelling-house  and  prem- 
ises of  the  plaintiff  unhealthy  and  unfit  for  occupation;  that 
the  offal,  blood  and  other  decaying  matter  thrown  out  and 
about  said  slaughter-house  causes,  and  has  ever  since  said 
erection  of  such  slaughter-house  caused,  a  nuisance  greatly 
impairing  the  comfort  and  health  of  the  plaintiff  and  his 
family,  and  has  impaired  the  value  of  his  said  premises,  and 


Form  1494.]  970  [Chapter  LX. 

hindered  him  from  selling  the  same,  as  he  much  desires  to  do, 
to  his  damage dollars. 

IV.     That  the  plaintiff,  on  the day  of 19 . ., 

requested  the  said  defendant  to  remove  the  said  slaughter- 
house, or  to  abate  the  said  nuisance,  but  the  defendant 
refused  so  to  do. 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
said  nuisance  be  removed  and  abated,  and  that  the  plaintiff 
recover  of  the  defendant  the  sum  of dollars,  as  afore- 
said, as  well  as  the  costs  of  this  action. 


1494.    The  same,  another  form. 

I.  That  the  plaintiff,  for years  last  past,  has  been 

and  still  is  lawfully  possessed  of  a  certain  dwelling-house  and 

appurtenances  situate  on  lot on  block in  the 

city  of county  of ,  in  which  dwelling-house  the 

plaintiff  then  resided  and  still  does  reside  with  his  family, 
and  has  carried  on  and  still  does  carry  on  the  business  of  a 
merchant  selling  dry  goods  and  groceries,  in  which  business 
the  said  plaintiff  made  large  profits  prior  to  the  acts  of  the 
defendant  hereinafter  stated. 

II.  That  the  defendant,  for years  last  past  has 

been  and  still  is  possessed  of  a  certain  piece  of  ground  near 

the  said  dwelling-house  of  plaintiff,  and  about feet 

distant  therefrom,  and  on  or  about  the day  of , 

19. .,  erected  on  said  piece  of  ground  a  slaughter-house,  and 
cattle  pens,  and  has  wrongfully  kept  and  continued  the  same, 
and  on  divers  days  during  said  time  has  slaughtered  oxen, 
calves,  sheep  and  hogs  in  said  slaughter-house,  and  placed 
in  and  near  the  same  large  quantities  of  blood,  garbage  and 
offal  arising  from  the  carcasses  of  the  animals  so  slaughtered, 
and  wrongfully  permitted  the  same  to  remain,  thereby  causing 
noxious  and  offensive  smells  and  stenches  arising  from  said 
blood,  garbage  and  offal  which  have  penetrated  and  still  do 
penetrate  the  dwelling-house  of  plaintiff  and  rendered  and 
do  render  the  same  unwholesome  and  uninhabitable,  and 
did  and  still  does  greatly  annoy,  incommode  and  disturb  the 
plaintiff  and  his  family,  and  greatly  injure  the  plaintiff  in 
his  business  aforesaid,  so  that  the  same  has  been  greatly 
decreased,  and  the  plaintiff  has  been  deprived  of  the  profits 


Chapter  LX.]  971  [Forms  1495-1497. 

and  gains  thereof  which  he  would  otherwise  have  enjoyed; 

all  to  the  plaintiff's  damage  in  the  sum  of dollars. 

WHEREFORE  [demand  for  Judgment  as  in  Form  1493.] 

1495.  The  same,  with  prayer  for  injunction. 

[Follow  either  of  the  preceding  forms,  and  insert  in  prayer  for 
judgment  after  the  demand  for  abatement]:  and  that  the 
defendant,  his  agents  and  servants,  be  perpetually  enjoined 
from  keeping  or  maintaining  the  said  slaughter-house,  etc. 

1496.  The  same,  to  abate  a  soap  factory. 

I  and  II.     [As  in  first  form  in  this  chapter.] 

III.  That  the  defendant,  on  or  about  the  ....  day  of 

,  19. .,  erected  on  said  premises  a  certain  boiler  and 

other  apparatus  for  manufacturing  soap,  and  thereupon 
began  and  has  since  continued  and  is  now  engaged  in  the 
boiling  of  large  quantities  of  grease,  dead  carcasses,  offal  of 
beasts,  and  other  dead  animal  matter  on  said  premises,  where- 
by many  unwholesome  and  offensive  smokes,  and  stenches 
have  been  and  still  are  emitted,  so  that  the  air  surrounding 
the  premises  of  the  plaintiff  has  been  and  still  is  filled  and 
impregnated  with  the  smokes,  stenches,  and  rendered  offen- 
sive and  unhealthful,  to  the  great  injury  of  the  plaintiff  and 
his  family. 

IV.  That  by  reason  of  said  smokes,  and  stenches,  entering 
the  said  dwelling-house  of  the  plaintiff,  the  comfort  of  the 
plaintiff  and  his  family,  and  their  health,  as  well  as  the  enjoy- 
ment of  their  said  home,  have  been  and  are  greatly  impaired, 
and  the  value  of  said  premises  diminished,  and  he  is  thereby 
hindered  from  selling  said  premises,  which  he  much  desires 
to  do;  and  [here  state  other  grounds  of  special  damage],  to  the 
plaintiff's  damage dollars. 

WHEREFORE,  etc.  [as  in  Form  1493.] 

1497.  The  same,  against  a  continuer  of  a  nuisance. 

I  and  II.     [As  in  first  form  in  this  chapter.] 

III.  That  ever  since  the day  of ,  19. .,  the 

defendant  has  maintained  a  slaughter-house  on  his  said 
premises,  and  has  [continue  as  in  Form  1058  from  the  *]. 

IV.  That  on  the  ....  day  of ,  19.  .,  the  plaintiff 

requested  the  defendant  to  remove  the  said  slaughter-house, 


Forms  1498,  1499.]  972  [Chapter  LX. 

or  to  cease  using  it  for  that  purpose,  but  he  has  not  done  so. 
[Allege  damages  as  in  preceding  forms.] 
WHEREFORE,  etc.  [as  in  Form  1493.] 

1498.  The  same,  to  abate  gas  works  (adapted  from  com- 

plaint in  Bohan  v.  P.  J.  G.  L.  Co.,  122  N.  Y.  18; 
25  N.  E.  246). 

[After  alleging  corporate  character  of  defendant,  if  necessary, 
and  also  plaintifTs  and  defendant's  ownership  of  adjoining 
premises  as  inform  1058,  continue]: 

III.  That  about  the  year  19. .,  the  defendant  erected  a 
new  tank  for  the  purpose  of  its  gas  works  on  its  said  premises, 
the  side  of  which  said  tank  stands  within  a  few  feet  of  plain- 
tiff's said  premises.  That  about  the  year  19 . . ,  the  defendant 
began,  and  ever  since  has,  and  still  does,  make  its  gas  at  said 
works  from  naptha  and  that  said  tank  was  and  still  is  used 
to  store  said  naptha  for  purposes  aforesaid.  That  the  said 
naphtha  is  a  noxious,  offensive  and  sickening  mineral  sub- 
stance, and  destructive  to  the  health  and  comfort  of  those 
required  to  remain  in  close  proximity  to  it.  That  said  tank 
was  erected  and  is  maintained  in  a  negligent  and  unskillful 
manner,  and  by  reason  of  the  negligence  and  want  of  care  in 
the  construction,  use,  and  maintenance  of  said  tank,  and 
the  negligent  and  unskillful  manufacture  of  gas  from  naptha, 
the  defendant  has,  f^ince  the  year  19. .,  and  still  does,  main- 
tain a  nuisance  injirious  to  the  comfort  enjoyment  of  said 
plaintiff,  and  injurious  to  the  rental  value  of  said  premises,  to 
plaintiff's  damage dollars. 

WHEREFORE,  etc.  [demand  for  judgment  as  in  Form 
1493.] 

1499.  The  same,  to  abate  a  brickyard  (from  complaint 

in  Kirchgraber  v.  Doyd,  59  Mo.  App.  59). 

[Allege  ownership  of  adjoining  lands,  as  inForml058\  and 
continue]: 

HI.  That  during  the  years  19. .,  and  19. .,  and  up  to  the 
time  of  the  commencement  of  this  action  the  defendant  has 
maintained  and  operated  upon  its  said  premises  a  large 
brickyard,  with  kilns  for  the  burning  of  brick,  and  during 
said  time  has  discharged  and  still  does  discharge  from  the 
said  kilns  large  volumes  of  noxious  and  offensive  smoke  fumes 


Chapter  LX.]  973  [Forms  1500,  1501. 

and  gases  upon  the  premises  of  the  plaintiff,  which  said 
smoke  fumes,  vapors  and  gases  have  destroyed  and  still  con- 
tinue to  destroy  the  crops  of  grain,  vegetables  and  fruit  grow- 
ing on  the  plantiff's  said  land,  and  have  during  all  of  said 
time  passed  into  and  penetrated  and  still  continue  to  pass 
into  and  penetrate  the  dwelling-house  of  the  plaintiff  upon 
said  land,  rendering  the  same  unhealthy  and  unfit  to  live  in, 
and  destroying  its  usefulness  as  a  residence  for  the  plaintiff 
and  his  family,  and  greatly  depreciating  its  value  and  sala- 

bility;  to  the  plaintiff's  damage dollars. 

WHEREFORE,  etc.  [demand  for  judgment  as  in  Form 
1493.] 

1500.  Allegation  of  nuisance  from  rendering  establish- 

ment. 

[After  alleging  the  ownership  and  proximity  of  the  plaintiff's 
and  defendant' s  premises.] 

That  about  the  month  of ,  19..,  the  defendants 

erected  upon  their  said  premises  a  building  in  which  since  the 
. . .  .day  of ,  19. .,  they  have  been  and  are  now  con- 
ducting the  trade  or  business  of  rendering  the  bodies  of  dead 
animals,  rancid  fat,  tallow  and  offal  and  other  animal  sub- 
stances, in  great  quantities;  which  said  business  has  during 
all  of  said  times^caused  and  still  continues  to  cause  noisome 
and  unhealthful  odors  and  stenches  to  arise  from  said  build- 
ing, and  to  penetrate  the  plaintiff's  said  dwelling-house,  so 
offensive  in  character  as  to  render  the  occupancy  of  plaintiff's 
dwelling-house  by  himself  and  family  inconvenient,  annoy- 
ing and  unhealthy,  and  greatly  to  the  injury  of  plaintiff's 
premises. 

1501.  Allegation  of  nuisance  from  noise  and  vibration 

of  heavy  machinery. 

[After  alleging  the  ownership  and  proximity  of  plaintiffs 
and  defendant's  premises,  for  which  see  the  preceding  forms.] 

That  since  about  the day  of ,  19 . . ,  the  defend- 

and  has  carried  on  and  still  carries  on  in  certain  buildings 
upon  its  said  premises  the  business  of  manufacturing  [state 
what]  by  the  use  of  heavy  hammers  and  other  noisy  machin- 
ery, which  are  used  with  great  violence  and  frequency,  and 
thereby  has  caused  and  still  continues  to  cause  vibrations  of 


Form  1502,  1503.]  974  [Chapter  LX. 

the  earth  to  take  place  and  sundry  great  noises  to  continue 
night  and  day,  and  thereby  has  done  great  damage  to  the  said 

dwelling-house  of  said  plaintiff,  in  the  sum  of dollars. 

That  said  noises  and  vibrations  have  interfered  with  and 
still  continue  to  interfere  with  the  comfort  of  the  plaintiff  and 
his  family,  in  the  occupation  of  said  dwelling-house,  making 
it  difficult  for  them  to  sleep,  and  making  it  uncomfortable 
and  impossible  to  enjoy  the  ordinary  use  of  said  premises  as 
a  dwelling-house,  and  to  pursue  the  ordinary  occupations  of 
life  therein. 

1502.  Allegation  of  nuisance  from  operation  of  limekiln. 

[Allege  ownership  of  adjoining  premises  as  in  preceding 
forms.] 

That  on  or  about  the  ....  day  of ,  19 . .,  the  defend- 
ant erected  certain  limekilns  upon  his  said  premises  and  near 
to  the  said  dwelling-house  of  the  plaintiff,  and  has  operated 
and  still  continues  to  operate  the  same,  and  to  send  forth 
therefrom  noxious  and  unhealthful  smoke  fumes,  vapors  and 
gases,  which  have  continuously  penetrated  and  do  still 
penetrate  the  dwelling-house  of  the  plaintiff,  whereby  the 
enjoyment  by  said  plaintiff  and  his  family  of  the  said 
dwelling-house  has  been  and  is  interfered  with  and  said 
dwelling-house  rendered  unhealthful  and  uncomfortable  for 
habitation,  and  greatly  depreciated  in  value;  to  his  damage 
in  the  sum  of dollars. 

1503.  Allegation  of  nuisance  by  house  of  prostitution. 

[Allege  ownership  of  adjoining  premises,  as  in  preceding 
forms.] 

That  about  the  month  of    ,   19..,  the  defendant 

erected  upon  his  said  premises  a  building,  and  immediately 
occupied  and  has  ever  since  and  does  now  occupy  the  said 
building  as  a  house  of  prostitution,  and  for  the  purpose  of 
assignation  and  prostitution;  and  has  and  does  therein 
maintain  and  carry  on  said  immoral  practices  and  maintain 
said  house  as  a  public  resort  for  immoral,  lewd  and  obscene 
purposes,  and  that  defendant's  said  premises  have  been  and 
are  the  resort,  at  all  times  of  the  night  especially,  of  lewd, 
immoral  and  desolute  characters,  both  male  and  female; 
that  loud,  offensive,  disorderly  and  unseemly  behavior  is 


Chapter  LX.]  975  [Forms  1504,  1505. 

constantly  attendant  thereupon,  and  assails  the  sight  and 
hearing  of  plaintiff  and  his  family,  and  visitors. 

That  by  reason  of  the  premises  the  comfortable  use  and 
enjoyment  of  said  property  of  plaintiff  has  been  and  is  and 
will  be  greatly  interfered  with  and  destroyed,  the  said  prop- 
erty is  rendered  unsuitable  and  unsalable  for  residence 
purposes,  and  thereby  greatly  depreciated  and  lessened  in 

value;    to  the  plaintifl^'s  damage  to  the  amount  of 

dollars. 

1504.  For  diverting  water  from  plaintiff's  mill. 

I.  That  at  all  the  times  hereinafter  mentioned  the  plain- 
tiff was  lawfully  possessed  [if  not  in  possession:  the  owner  in 
fee],   of  a  water-mill,   called   a  grist-mill   [or,   saw-mill,   or 

otherwise],  situated  upon brook  [naming  the  stream], 

at  [stating  location  definitely,  or  stating  name  of  mill]. 

II.  That  the  plaintiff  then  had  a  right  to  use  and  employ 
the  water  of  said  brook,  and  to  have  the  same  flow  to  and 
through  his  mill  in  a  convenient  and  customary  manner,  ac- 
cording to  the  natural  and  usual  flow  of  said  brook,  and 
without  the  hindrance  of  the  defendant  or  any  other  person. 

III.  That  on  the  ....  day  of ,  19. .,  and  on  var- 
ious days  between  that  time  and  the   ....  day  of , 

19. .,  the  defendant  [knowing  the  premises,  and  intending  to 
injure  the  plaintiff],  wrongfully  *  dug  up  and  removed  the 
banks  of  said  brook  above  said  mill,  and  for  ....  days  di- 
verted the  water  [or,  part  of  the  water]  thereof  from  running 
to  and  through  said  mill  [or,  built  a  dam  across  said  brook 
above  said  mill,  and  for  ....  days  stopped  the  water  thereof 
from  running  to  and  through  said  mill]. 

IV.  That  by  reason  of  such  acts  of  the  defendant,  the 
plaintiff's  mill,  which  was  able,  and  before  was  used  to  grind 
....  bushels  each  day,  thereafter  and  during  the  time  afore- 
said could  only  grind  ....  bushels,  to  the  damage  of  the 
plaintiff dollars.  [Or  otherwise  state  the  damage,  ac- 
cording to  the  facts.] 

WHEREFORE,  etc. 

1505.  For  erecting  a  dam,  causing  backwater. 

[As  in  preceding  form  to  the  *,  continuing]:  erected  a  dam 
and  mill  upon  the  same  stream,  a  little  below  the  plaintiff's 


Forms  1506-1508.]  976  [Chapter  LX. 

said  mill,  and  has  continued  the  same  ever  since,  whereby 
the  defendant  causes  a  backwater  that  hinders  a  free  course 
of  said  stream  from  the  plaintiff's  mill,  causes  the  water  of 
said  creek  to  flow  back  upon  the  water  wheels  of  plaintiff's 
mill  to  the  depth  of  ....  feet,  greatly  diminishing  the  power 
and  capacity  thereof,  to  the  nuisance  of  his  mill,  and  to  the 

hindrance  of  his  business,  to  his  damage dollars  [or 

conclude  with  paragraph  IV  of  last  preceding  form]. 
WHEREFORE,  etc. 

1506.  Against  erector  of  a  dam  which  is  a  nuisance. 

I.  That  the  plaintiff  is,  and  at  the  times  hereinafter  men- 
tioned was,  the  owner  of  the  freehold  of  certain  lands  in 

with  dwelling-house  thereon,  known  as  [designating 

the  premises], 

II.  That  in  the  month  of ,  19..,  the  defendant 

wrongfully  raised  a  dam  [or,  a  pool  of  water]  upon  his  free- 
hold, in  the  vicinity  of  the  plaintiff's  land,  whereby  *  the 
water  was  flowed  thereon  [or,  on  the  plaintiff's  freehold]  to 
the  nuisance  of  plaintiff's  said  freehold,  and  still  flows  there- 
on, to  his  damage dollars. 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
said  nuisance  be  abated  and  removed,  and  that  the  plaintiff 

recover  of  the  defendant    dollars  damages  caused 

thereby,  and  the  costs  of  this  action. 

1507.  The  same,  where  the  land  has  been  transferred. 

[Insert  after  paragraph  II  in  preceding  form:] 

III.  That  on  or  about  the  ....  day  of ,  19. .,  the 

defendant  [erector]  conveyed  said  freehold  to  the  defendant 
[continuer]  who,  from  that  time  ever  since,  has  been  in  pos- 
session of  said  freehold  and  dam,  and  wrongfully  maintains 

said  nuisance;    although,  on  the  ....  day  of 19.  ., 

and  before  this  action,  he  was  by  plaintiff  requested  to 
remove  and  abate  the  same. 

1508.  Allegation  of  special  damage  to  plaintiff's  land. 

[Conclude  paragraph  II  inform  1506  from  the  *,  e.  g.  thus]: 

whereby  the  plaintiff's  grass,  of  the  value  of dollars, 

then  growing  on  said  meadow,  was  spoiled,  and  his  meadow 
made   spongy,   rotten,    and   good   for   nothing;     and   forty 


Chapter  LX.]  977  [Forms  1509,  1510. 

lengths  of  plaintiff's  fence,  of  the  value  of dollars, 

have  been  taken  up  and  carried  away. 


1509.  For  obstructing  a  private  way. 

I.  That  the  plaintiff,  at  the  time  hereinafter  mentioned, 
was  [and  still  is]  possessed  of  [here  describe  his  premises,  e.  g.,  a 

meadow  in  the  town  of and  county  of ]  and 

had  a  right  of  way  therefrom  over  the  adjoining  land  to  the 
highway  [or,  to  other  land  of  the  plaintiff]  to  pass  and  repass 
on  foot  freely  at  all  times  [or,  with  horses,  or,  with  carts, 
designating  the  use  of  the  way  according  to  the  fact]. 

II.  That  the  defendant,  on  the  ....  day  of ,  19 . ., 

and  at  other  times  thereafter,  and  before  this  action,  wrong- 
fully obstructed  said  way  by  [building  a  fence  across  it] 
whereby  the  plaintiff  was  for  a  long  time  [or,  was  and  still  is 

prevented  from  enjoying  said  way,  to  his  damage   

dollars. 

[Allege  other  and  special  damage,  if  any.] 
WHEREFORE,  etc. 

1510.  For  damage  from  bursting  of  a  reservoir   (su- 

stained in  Hoffman  v.  T.  C.  W.Co.,  10  Oal.  413). 

I.  That  on  or  about  the  . . .  .day  of ,  19. .,  the 

plaintiff  was  and  still  is  the  owner  of  [describe  property]  situ- 
ated at 

II.  That  on  or  about  the  ....  day  of ,  19 . .,  the 

defendant  had  erected  and  was  the  owner  of  a  reservoir 
situated  [describe  location  and  its  proximity  to  plaintiffs 
property]  wherein  was  collected  a  large  body  of  water,  which 
would  otherwise  have  flowed  away  in  natural  channels. 

III.  That  on  or  about  said  ....  day  of ,  19. .,  the 

defendant's  said  reservoir  by  reason  of  some  defect  in  its  con- 
struction, insufficiency  for  the  purpose  for  which  it  was  con- 
structed, or  carelessness  and  mismanagement  on  the  part 
of  the  said  defendant,  broke  away  and  the  water  therein  con- 
tained flowed  down  upon  and  over  plaintiff's  said  lands. 

IV.  [Allege  damage  sustained.] 

WHEREFORE,  etc. 
62 


Forms  1511,  1512.]  978  [Chapter  LX. 

1511.  For  obstructing  street,  causing  injury  to  private 

person. 

I.  That  at  and  before  the  times  hereinafter  mentioned 
there  was  and  ever  since  has  been  a  certain  public  highway 

[or  street,  if  in  a  town  or  city]  called street  in  the  city 

of  I state  of 

II.  That  the  said  defendant  on  the day  of , 

19. .,  wrongfully  caused  to  be  placed  large  quantities  of  dirt, 
rubbish,  stones  and  other  materials  in  said  public  highway 
[or  street],  thereby  rendering  the  same  dangerous  for  public 
travel. 

III.  That  the  plaintiff  on  the  ....  day  of ,  19. ., 

was  lawfully  passing  in  and  along  said  highway  [or  street]  in  a 
certain  carriage  drawn  by  horses,  and  was  then  and  there  by 
reason  of  said  rubbish  and  material  so  wrongfully  placed  in 
said  highway  [or  street]  with  great  force  and  violence  over- 
turned, without  the  fault  or  negligence  of  the  plaintiff  and 
his  said  wagon  was  broken  and  greatly  injured,  and  he  was 
seriously  injured  in  and  about  his  person  [state  bodily  injuries 
received]  whereby  he  was  put  to  great  expense  in  curing  his 
said  injuries  and  repairing  his  said  carriage,  to-wit,  in  the  sum 

of dollars,  and  was  rendered  unable  to  attend  to  his 

usual  business  for  the  space  of days,  to  his  damage 

dollars. 

WHEREFORE,  etc.  [prayer  for  abatement  and  damages,  as 
in  Form  1506.] 

1512.  Complaint  in  equity  to  enjoin  nuisance  caused  by 

polluting  waters  of  a  stream  by  refuse  of  a 
starch  factory  (adapted  from  Middlestadt  v. 
W.  S.  &  P.  Co.,  93  Wis.  1;  66  N.  W.  713). 

I.  That  the  plaintiff  for  ....  years  last  past  has  been  and 

now  is  the  owner  of  a  farm  in county,  described  as 

follows  [insert  description]  upon  which  are  the  plaintiff's  home 
and  farm  buildings,  and  where  the  plaintiff  with  his  family 
has  at  all  times  resided  and  still  continues  to  reside. 

II.  That  the  said  farm  is  situated  on  the   river, 

about  one-half  mile  of  the  boundary  line  thereof  being  the 
thread  or  center  of  said  river,  and  that  said  river  is  a  public 
navigable  river  running  through  said  county,  and  mostly 
consisting  of  spring  water,  and  except  for  the  acts  of  the 


Chapter  LX.]  979  [Form  1512. 

defendant  hereinafter  named,  of  a  clear  and  healthy  quality 
and  suitable  for  use  for  domestic  and  farm  purposes. 

III.  That  the  defendant  for  .  .  .  years  last  past  has  owned 
and  operated  and  still  owns  and  operates  a  large  manufac- 
turing establishment  upon  the  bank  of  said  river  several 
miles  up  stream  from  plaintiff's  said  farm,  and  that  said 
defendant  has  continuously  during  said  ....  years  wrong- 
fully and  negligently  thrown  and  emptied  into  said  river,  and 
continues  to  empty  therein,  large  quantities  of  slops,  gar- 
bage, refuse,  offal,  starch,  rotten  potatoes  and  pulp,  which 
are  offensive  and  unhealthful;  and  have  been  and  are  carried 
down  stream,  polluting  the  waters  of  said  river,  and  especially 
along  and  in  front  of  the  plaintiff's  said  farm,  generating  a 
poisonous  scum  thereon  and  infecting  the  air  with  offensive 
and  noxious  smells  and  miasma,  to  the  great  injury-  and  detri- 
ment of  the  plaintiff  and  his  family. 

IV.  That  the  plaintiff  has  suffered  and  still  suffers  a 
special  and  peculiar  injury  resulting  from  the  said  wrongful 
acts  of  the  defendant  in  that  he  is  now  and  has  been  during 
all  of  said  time  deprived  of  the  use  of  the  water  of  said  river 
for  farm  and  domestic  purposes,  and  deprived  from  cutting 
ice  thereon,  and  in  that  the  waters  of  said  river  have  been 
and  are  rendered  unwholesome  and  poisonous,  and  that  the 
air  surrounding  the  plaintiff's  said  dwelling  has  been  and  is 
rendered  unhealthful,  thus  reducing  the  value  of  his  said 

farm  in  the  sum  of dollars,  making  his  said  home 

unfit  for  habitation  for  himself  and  his  family,  all  to  the 
great  damage  of  the  plaintiff. 

V.  That  the  said  nuisance  is  continuous  and  constantly 
recurring,  and  that  it  will  work  an  irreparable  injury  to  the 
plaintiff  and  to  his  said  farm,  and  will  result  in  interminable 
litigation  unless  the  plaintiff  have  relief  in  equity,  and  that 
the  plaintiff  has  no  adequate  remedy  at  law;  that  the  de- 
fendant threatens  and  gives  out  that  he  will  continue  to 
operate  said  factory  and  empty  the  said  slops  and  refuse 
in  the  said  river  in  the  future  in  the  same  manner  as  hereto- 
fore, and  that  the  plaintiff  believes  and  fears  that  he  will  do 
so  unless  restrained  by  the  injunctional  order  of  this  court. 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
said  defendant,  his  agents  and  servants,  be  perpetually 
enjoined  and  restrained  from  emptying  or  throwing  any  of 
said  slops  or  refuse  matter  into  said  river,  that  a  temporary 


Form  1513.]  980  [Chapter  LX. 

injunctional  order  issue  in  this  cause,  that  the  plaintiff  have 
judgment  against  the  defendant  for  his  damages  already 

suffered,  to-wit,  the  sum  of dollars,  with  costs,  and 

that  he  have  such  further  or  other  relief  as  may  be  just  and 
equitable. 


1513.  Complaint  in  equity  by  a  city  to  enjoin  erection 
of  a  building  in  a  public  street  (adapted  from 
Racine  v.  J.  I.  Case  Plow  Co.,  56  Wis.  539;  14 
N.  W.  599). 

I.  That  the  plaintiff  is  now,  and  since  the  ....  day  of 

,  19. .,  has  been  a  municipal  corporation  organized 

and  existing  under  and  by  virtue  of  chapter  ....  of  the  laws 
of  the  state  of 

II.  That  there  is  now  and  for  ....  years  last  past  has 
been  a  public  street  and  highway  existing  in  the  said  city 

known  as street,   ....  feet  in  width  and  extending 

from  [describe  street]  which  has  been  and  now  is  a  public 
highway  of  great  importance  and  largely  and  constantly 
used  by  teams  and  foot  passengers  for  the  purpose  of  travel 
and  trade. 

III.  That  on  or  about  the day  of 19. .,  the 

defendant  caused  to  be  made  an  excavation  about  ....  feet 
long  and  ....  feet  in  width  in  said  street  [describe  location] 
and  to  lay  walls  and  foundations  in  said  excavation,  and  is 
continuing  to  build  said  walls  and  foundations,  and  gives 
out  and  states  that  he  will  immediately  erect  thereon  a 
permanent  building  of  one  or  more  stories  in  height  whereby 
said  street  will  be  greatly  impaired  in  its  usefulness  and  the 
width  thereof  reduced  to  ....  feet,  and  the  same  will  be 
rendered  less  convenient  for  public  travel  and  convenience. 

IV.  That  this  plaintiff  has  duly  notified  said  defendant 
not  to  erect  said  building,  but  that  defendant  threatens  to 
continue  and  complete  the  same,  and  that  the  plaintiff  fears 
and  believes  that  he  will  do  so,  thereby  causing  a  multiplicity 
of  suits  and  working  an  irreparable  injury  to  the  plaintiff; 
that  the  plaintiff  has  no  adequate  remedy  at  law. 

WHEREFORE,  etc.  [prayer  for  perpetual  injunction.] 


Chapter  LX.]  981  [Forms  1514,  1515. 

1514.  Complaint  in  equity  to  enjoin  threatened  nuisance 

by  deposit  of  garbage  on  neighboring  lands. 

I  and  II.     [As  in  Form  1493.] 

III.  That  defendant  in  or  about  the  month  of , 

19. .,  began  to  deposit  on  his  said  lot,  and  still  continues  to 
deposit  thereon  large  quantities  of  garbage,  offal,  manure, 
decayed  begetables  and  animal  matter,  and  allow  others  to 
deposit  such  articles  and  material  thereon,  and  gives  out  and 
threatens  that  he  intends  to  continue  to  use  said  lot  for  the 
purpose  of  depositing  said  garbage  and  other  material  there- 
on. 

IV.  That  the  effect  of  such  deposit  of  garbage  and  other 
material  on  said  lot  has  been  and  in  the  future  will  continue  to 
be  to  fill  the  air  in  and  about  the  plaintiff's  said  dwelling-house 
with  offensive  and  unhealthy  stenches,  and  to  endanger  the 
plaintiff's  health  and  that  of  his  family,  to  their  great  an- 
noyance and  discomfort,  and  to  the  irreparable  injury  of  the 
plaintiff,  by  rendering  his  house  uninhabitable  and  greatly 
diminishing  the  value  thereof. 

WHEREFORE  the  plaintiff  demands  judgment:  (1)  that 
the  defendant  and  all  persons  claiming  or  acting  under  him 
be  perpetually  enjoined  and  restrained  from  using  or  per- 
mitting the  use  of  said  lot  and  premises  for  the  uses  afore- 
said; (2)  for  the  costs  and  disbursements  of  this  action;  (3) 
for  such  other  or  further  relief  as  may  be  equitable. 

1515.  By  town  to  enjoin  erection  of  a  fence  in  highway. 

I  and  II.  [As  in  Form  1513  changing  the  allegations  so  as  to 
show  thai  the  plaintiff  is  a  lawn  and  not  a  city.] 

III.  That  on ,  19. .,  defendant  wrongfully  entered 

upon  said  highway  where  the  same  crosses  certain  land 
owned  by  him  [describing  it]  and  then  and  there  built  an 
obstruction  thereon  consisting  of  a  fence  ....  feet  high  and 
....  feet  long,  so  as  to  obstruct  and  prevent  public  travel 
thereon. 

IV.  That  on  ,  19..,  plaintiff  removed  said  ob- 
struction but  shortly  thereafter  defendant  wrongfully  re- 
newed it,  and  that  defendant  threatens  to  and  will,  unless 
restrained  by  order  of  this  court,  maintain  said  obstruction, 
and  plaintiff  is  without  adequate  remedy  at  law. 


Form  1516.]  982  [Chapter  LX. 

V.     That  plaintiff  necessarily  expended dollars  in 

removing  said  original  obstruction  and  in  repairs  on  said 
road  rendered  necessary  by  said  obstruction. 

THEREFORE,  etc.  [prayer  for  perpetual  injunction,] 

1516.    For   injunction   against   fouling   a   watercourse 
(Conn.  Pr.  Act  form  327). 

I.  That  at  the  times  hereinafter  named  plaintiff  owned 

and  still  owns  a  farm  in county,  consisting  of  [describe 

land]. 

II.  That  through  said  farm  there  flows  and  has  ever 
flowed  a  stream  known  as brook. 

III.  That  defendant  owns  a  paper  mill  on  said  brook  at 
a  point  above  plaintiff's  farm  which  he  has  operated  as 
such  since ,  19. . 

IV.  That  during  the  last  few  months  defendant  has  used, 
in  the  operation  of  said  mill,  various  noxious  chemical  sub- 
stances and  fluids  for  cleaning  rags,  and  has  allowed  the 
same,  after  they  have  been  so  used,  to  be  thrown  into  or 
mixed  with  the  water  of  said  creek,  whereby  such  water 
has  been  greatly  fouled. 

V.  That  before  that  time  plaintiff  had  always  watered  his 
stock  at  said  creek,  and  had  also  carried  the  water  therefrom 
into  his  house,  by  pipes,  and  was  using  it  for  his  domestic 
purposes. 

VI.  That  since  defendant  has  discharged  such  substances 
in  said  creek  as  aforesaid  the  water  thereof,  where  it  enters 
plaintiff's  said  farm,  and  throughout  its  entire  course  through 
the  same,  is  so  foul  and  unwholesome,  that  he  has  been  and 
is  unable  to  use  it  either  for  his  stock  or  his  domestic  pur- 
poses. 

VII.  That  on ,  19.  .,  plaintiff  notified  defendant  of 

such  injury  to  the  water  of  the  creek  and  requested  him  to 
desist  from  any  such  use  of  the  creek  thereafter,  but  he  still 
continues  said  nuisance. 

VIII.  That  plaintiff  has  already  been  damaged  thereby  to 
the  extent  of dollars,  and  if  said  nuisance  is  con- 
tinued indefinitely  said  farm  will  be  greatly  reduced  in  value. 

WHEREFORE  plaintiff  demands  judgment  permanently 
enjoining  defendant  from  continuing  said  nuisance,  and  for 
dollars  damages,  with  costs. 


Chapter  LX.]  983  [Forms  1517-1519. 

1517.  Outline  of  complaint  for  obstruction  of  a  natural 

watercourse  by  a  railroad  embankment. 

I.  [Allege  corporate  existence  of  the  defendant  as  in  Form 
848  or  849.] 

II.  [Allege  the  plaintiffs  ownership  of  the  land  through 
which  the  water  course  runs.] 

III.  [Allege  that  the  defendant  constructed  a  railroad  through 
or  along  the  side  of  plaintiff's  land  giving  the  date  and  that  it 
has  ever  since  maintained  the  same.] 

IV.  [Allege  that  prior  to  the  construction  of  the  railroad  a 
natural  water  course  ran  through  plaintiffs  land,  describing 
its  course,  but  that  the  defendant  in  constructing  its  railroad 
built  and  maintains  an  embankment  or  dike  across  the  natural 
flow  of  said  watercourse  which  causes  the  water  therein  to  rise 
and  overflow  the  plaintiffs  land  and  remain  stagnant  thereon 
for  months  at  a  time,  etc.] 

V.  [Allege  the  impairment  in  value  of  the  land  and  the 
amount  thereof.] 

WHEREFORE,  etc. 

1518.  For  flowing  v/ater  from  adjoining  roof  on  plain- 

tiff's premises. 

I.  That  on  or  about  the  ....  day  of ,  19. .,  the 

plaintiff  was  the  owner  in  fee  of  a  dwelling-house  and  prem- 
ises known  as  No , street,  in  the  city  of 

in  which  the  plaintiff  and  his  family  then  resided. 

II.  That  on  or  about  said  date  the  defendant  wrongfully 
erected  a  building  so  near  to  the  said  dwelling-house  of  the 
plaintiff,  and  in  so  careless  and  improper  a  manner,  that  by 
reason  thereof,  on  said  day,  and  on  divers  other  times  after- 
wards and  before  this  action,  large  quantities  of  rainwater  ran 
from  said  building  and  from  the  gutters  thereof  upon  and  into 
to  the  said  dwelling-house  and  premises  of  the  plaintiff, 
whereby  the  walls,  ceilings,  papering  and  other  parts  thereof 
were  wet  and  damaged,  and  said  dwelling  became  unfit  for 
habitation,  to  the  plaintiff's  damage dollars. 

WHEREFORE,  etc.  [as  in  Form  1493]. 

1519.  Against  city  for  maintenance  of  insufficient  sewer. 

I.  [Allege  corporate  capacity  of  defendant  city.] 

II.  [Allege  plaintiffs  ownership  of  the  building  or  dwelling 
which  has  been  flooded  or  polluted  with  sewage.] 


Form  1519.]  984  [Chapter  LX. 

III.  [Allege  the  construction  of  the  sewer  in  question  by  the 
city  and  proceed]:  and  that  the  said  drain  or  sewer  was  so 
constructed  and  located  that  thereby  in  and  through  it  a 
large  amount  of  rain  and  waste  water,  and  of  material  of  a 
filthy  and  noxious  character  [which  said  sewer  or  drain  was 
built  for  the  purpose  of  receiving  and  removing]  is  received 
from  the  localities  which  it  drains.  That  in  consequence  of 
the  inadequate  and  insufficient  size  and  plan  of  said  sewer 
and  of  the  defective  construction  thereof,  caused  by  the 
negligence,  ignorance,  carelessness  and  fault  of  said  defend- 
ant's officers  and  agents,  the  said  sewer  repeatedly,  during 
the  years  . . . . ,  to  ....  inclusive,  while  plaintiff  was  the 
owner  of  the  aforesaid  property,  and  more  especially  so 
at  the  time  of  rainstorm  in  said  period,  did  overflow  and  cast 
its  filthy  contents  upon  and  into  plaintiff's  premises,  injuring 
the  same  and  destroying  this  plaintiff's  goods  and  chattels 
in  said  premises  contained  and  kept,  and  that  thereby,  and 
by  reason  of  the  foul  and  unhealthy  atmosphere  caused  as 
aforesaid,  plaintiff  and  his  family  have  been  greatly  injured 
in  their  health  and  comfort,  and  part  of  his  said  property 
has  not  been  tenantable  but  unproductive. 

IV.  That  the  said  drain  or  sewer  was  constructed  and 
built  as  aforesaid  of  inadequate  size  and  upon  a  defective  plan 
and  was  without  any  proper  and  sufficient  means  and  pro- 
visions for  carn>dng  off  and  discharging  such  matter  by  it 
collected  as  aforesaid,  and  that  it  was  so  located  and  built, 
through  the  negligence,  default  and  miscarriage  of  the  officers 
and  agents  of  the  defendant,  and  specifying  certain  respects 
wherein  such  officers  and  agents  were  negligent  as  aforesaid, 
plaintiff  says  that  the  said  drain  was  built  of  insufficient 
capacity,  strength  and  durability,  and  [specify  any  other 
particulars  in  which  there  were  defects  of  construction]. 

V.  That  the  officers  and  agents  of  defendants  having  the 
control  and  management  of  the  building  and  location  of  said 
sewer,  and  through  whose  agency,  negligence,  default  and 
misconduct  the  injury  aforesaid  was  caused,  were  officers 
of  the  defendant  city  charged  by  law  with  the  duty  of 
constructing  said  sewer. 

VI.  That  the  said  defendant  had  notice  of  the  said  damage 
and  the  cause  thereof,  and  that  they,  said  defendants,  have 
neglected  and  refused  to  give  any  relief  in  the  matter  what- 
soever. 


Chapter  LX.]  985  [Forms  1520,  1521. 

VII.    That  by  reason  of  the  negligent  acts  aforesaid  the 
plaintiff  has  been  damaged,  as  heretofore  stated,  in  the  sum 

of dollars. 

^  WHEREFORE,  etc. 

1520.  For  maintaining  private  drain  causing  injury. 

I.  [Allege  plaintiff's  ownership  and  occupancy  of  premises 
injured.] 

II.  [Allege  defendant's  ownership  or  occupancy  of  premises 
from  which  drain  is  laid.] 

III.  That  on  or  about  the  ....  day  of ,  19. .,  the 

defendant,  being  in  possession  of  the  tract  of  land  last  afore- 
said, did  wrongfully  excavate  and  lay  drains  from  said  tract 
of  land,  then  and  now  in  possession  of  the  defendant,  across 
the  aforesaid  street,  extending  the  same  upon  the  building 
lots  of  the  plaintiff,  heretofore  described,  and  wrongfully  and 
maliciously  caused  the  same  to  be  discharged  and  to  flow 
upon  the  building  lots  aforesaid  of  the  plaintiff,  and  unlaw- 
fully permitted,  and  does  still  permit,  said  pipe  and  flow  of 
water,  drainage  and  sewerage,  to  remain  and  continue  upon 
plaintiff's  lots,  thereby  rendering  said  lots  unfit  for  business 
purposes,  to  the  great  damage  of  the  plaintiff. 

IV.  [Allege  damage  sustained]. 
WHEREFORE,  etc.  [as  in  Form  1493]. 

1521.  For  diverting  water  from  a  stream  which  plaintiff 

had  used  for  irrigation  purposes  (adapted  from 
Shotwell  V.  Dodge,  8  Wash.  337;  36  Pac.  Rep. 
254). 

I.  That  the  plaintiffs  are  the  owners  of  a  certain  tract  of 
land  consisting  of  [description],  and  were  in  possession  of  the 

same  since  the  ....  day  of ,  19 . . ;  that  the  defendants 

own,  and  are  in  possession  of  land  adjoining  and  immediately 
north  of  the  premises  aforesaid  of  the  plaintiffs;  that  through 
the  land  of  both  parties,  as  aforesaid,  a  stream  has  at  all 
times  flowed  from  north  to  south  in  a  well-defined  channel 
protected  by  natural  banks. 

II.  That  in  the  month  of ,  19.  .,  the  plaintiffs  built 

a  dam  across  the  said  stream  upon  their  lands  and  con- 
structed various  ditches  therefrom  to  irrigate  their  lands  in 
connection  with  their  farming  operations  in  raising  crops  and 


Form  1521.]  986  [Chapter  LX. 

also  for  the  purposes  of  conveying  the  water  from  said  stream 
to  their  dweUings  and  barns,  to  use  the  same  for  domestic 
purposes;  that  plaintiffs'  said  land  was  theretofore  entirely- 
dry  and  without  irrigation,  and  was  non-productive. 

III.  That  by  the  construction  of  said  dam  and  the  conse- 
quent diversion  of  the  waters  of  said  stream  to  the  plaintiff's 

said  premises  the  plaintiff  during  the  said  month  of , 

19. .,  appropriated  all  the  waters  of  said  [stream]  to  his  own 
use,  and  from  that  time  till  the  time  hereinafter  mentioned 
has  continuously  used  the  same, 

IV.  That  in  19. .,  the  defendants  wrongfully  built  a  dam 
across  the  said  creek  on  their  said  land,  whereby  they  com- 
pletely stopped  the  water  from  flowing  in  its  accustomed 
channels  through  plaintiffs'  land  as  it  was  accustomed  to  flow, 
and  from  flowing  into  and  through  the  plaintiffs'  ditch;  that 
in  connection  with  this  said  dam  the  defendants  also,  at 
said  time,  constructed  a  ditch  that  carried  the  water  of  said 
creek  eastward  over  their  own  land  where  they  permitted  it 
to  scatter  and  waste  without  providing  any  artificial  channel 
for  its  return  to  the  bed  of  the  said  creek. 

WHEREFORE,  etc. 


CHAPTER  LXL 


COMPLAINTS  IN  ACTIONS  FOR  WASTE. 


1522.  By   lessor   against  lessee  for 

damages.    (Wisconsin.) 

1523.  By  remainderman  imder  will 

against  life  tenant.     (Wis- 
consin.) 

1524.  By  ward   against   guardian. 

(Wisconsin.) 

1525.  By  joint  tenant  or  tenant  in 

common  against  cotenant. 

1526.  By    heirs    against    dowress. 

(Wisconsin.) 

1527.  By    reversioner    against    as- 

signee of  life  estate. 

1528.  By  purchaser  at  sheriff's  sale 

for  waste  committed  before 
conveyance.     (Wisconsin.) 

1529.  The  same,  by  redemptioner 

against  purchsaer. 


1530.  By  lessor  against  lessee  for 

damage  and  an  injanc- 
tion.   (Wisconsin.) 

1531.  The  same,  where  lessee  has 

covenanted  to  leave  im- 
provements made  by  him 
on  the  premises. 

1532.  Complaint  for  waste,  general 

form.    (Minnesota.) 

1533.  Complaint  for  waste,  general 

form.  (North  and  South 
Dakota.) 

1534.  Complaint  for  waste,  general 

form.  (Iowa.) 

1535.  Complaint  for  waste,  general 

form.  (Nebraska.) 


The  statutes  of  most  of  the  code  states  provide  for  actions 
of  waste  wherein  a  guardian  may  be  made  to  account  to  his 
ward  for  waste  committed  on  the  ward's  estate  and  wherein 
a  tenant  in  possession  of  real  estate  for  life  or  years  may  be 
compelled  to  pay  damages  to  the  remainderman  or  rever- 
sioner as  well  as  to  the  owner  of  an  intervening  estate,  if 
there  be  one. 

In  Wisconsin  double  damages  are  recoverable  in  such  an 
action  ;i  in  Cahfornia,  Idaho,  Missouri,  Montana,  and  Utah 
treble  damages;^  in  Minnesota,  North  Dakota,  South 
Dakota,  Oregon  and  Washington  treble  damages,  and  also 
forfeiture  of  the  estate  and  eviction  whese  the  damage  equals 
the  value  of  the  tenants  unexpired  term  or  the  waste  is  done 
in  malice;'  in  Iowa  and  Nebraska  treble  damages,  also  for- 


iWis.  Stats.  1913  sec.  3170-3179. 

*Cal.  C.  C.  P.  1906  sec.  732; 
Idaho  Rev.  Codes  1908  sec.  4530; 
Mo.  R.  S.  1909  sec.  7913  (also  loss 
of  the  thing  wasted);  Mont.  Rev. 


Codes  1907  sec.  6866;  Utah  Comp. 
Laws  1907  sec.  3507. 

»Minn.  Gen.  Stats.  1913  sec. 
8088;  N.  Dak.  Rev.  Codes  1909 
sec.  7538  et  seq.;  S.  Dak.  C.  C.  P. 


Form  1522.]  988  [Chapter  LXI. 

feiture  and  eviction  where  the  damage  equals  two-thirds  of 
the  value  of  the  defendants  interest.*  In  Kansas  it  is  pro- 
vided that  a  remainderman  or  reversioner  may  maintain  an 
action  for  waste  notwithstanding  the  existence  of  an  inter- 
mediate estate  for  hfe  or  for  years  ;s  in  Oklahoma  the  action 
is  specifically  abohshed  but  the  remedy  is  to  be  obtained  by 
ordinary  action.^ 

1522.    By  lessor  against  lessee  for  damages  (Wis.  Stats. 
1913  sees.  3170-3179). 

I.  That  the  plaintiff,  before  and  at  the  time  of  the  commit- 
ting of  the  grievances  hereinafter  mentioned,  was  and  still  is 
the  owner  in  fee-simple  of  the  following  described  lands  [de- 
scription of  premises]. 

II.  That  at  the  time  of  the  committing  of  said  grievances 
the  defendant  held  and  enjoyed  the  said  premises  as  tenant 
thereof  to  the  plaintiff,  under  and  by  virtue  of  a  demise  to  the 
defendant,  made  by  the  plaintiff  for  the  term  of  ....  years 
from ,  19.  . 

III.  That  the  defendant,  with  intent  to  injure  the  plaint- 
iff in  his  reversionary  interest  therein,  on  the   ....  day  of 

,  19. .,  and  on  other  days  thereafter,  and  before  this 

action,  without  authority,  cut  down  and  carried  away  there- 
from one  thousand  beech  trees,  one  thousand  chestnut 
trees,  etc.,  of  the  value  of dollars. 

IV.  That  during  the  same  time  he  likewise  dug  up  and 
carried  away  one  thousand  cubic  yards  of  soil  and  herbage, 

of  the  value  of dollars,  and  converted  all  the  same 

to  his  own  use. 

V.  That  during  the  same  time  he  likewise  wrongfully  [or 
negligently]  set  fire  to  and  destroyed  a  certain  building  upon 
the  premises,  and  constituting  part  of  the  realty,  and  wholly 
destroyed  the  same,  which  said  building  was  of  the  value  of 

dollars.     [State  other  acts  of  waste  if  any,  according 

to  the  fads]. 

VI.  That  by  reason  of  said  acts  of  waste  the  value  of  said 
premises  and  of  the  plaintiff's  reversionary  interest  therein 

1908  sees.  693,  694;  Oregon  Laws  ^  Kans.    Cien.    Stats.    1909    sec. 

1910   sec.    345;    Wash.    Rem.    and  4712. 

Bal.  Codes  1910  sec.  938.  «  Okla.    Comp.    Laws    1909    sec. 

*  Iowa  Code  1897  sec.  4303,  4304;  6221. 
Neb.  R.  S.  1913  sec.  8244  et  seq. 


Chapter  LXL]  989  [Forms  1523,  1524. 

has  been  greatly  impaired  to  the  damage  of  the  plaintiff  in  the 
sum  of   dollars  for  double  which  sum  plaintiff  de- 
mands judgment  against  the  defendant,  with  costs. 
WHEREFORE,  etc. 

1523.  By  remainderman  under  will  against  life  tenant 

(Wisconsin). 

I.  That  on  the  ....  day  of ,  19 . . ,  one  E F 

was  seized  in  fee-simple  of  [describe  the  premises]. 

II.  That  in  his  lifetime  the  said  E. . . .  F. .  . .  made  and 
published  his  last  will  and  testament,  whereby  he  devised  the 
said  land  to  the  defendant  for  life,  and  afterwards  to  the 
plaintiff  in  fee. 

III.  That  on  the  ....  day  of ,  19.  .,  at the 

said  E.  .  . .  F.  . . .  died. 

IV.  That  said  will  was  afterwards  and  on  the  ....  day  of 

,  19. .,  duly  admitted  to  probate  by  the court 

of   county,  being  the  court  which  had  jurisdcition 

thereof,  and  on  the  ....  day  of ,  19. .,  by  judgment  of 

said  court  the  said  land  was  duly  assigned  to  the  said 
defendant  for  life,  and  the  remainder  thereof  in  fee  to  this 
plaintiff. 

V.  That  on  the  ....  day  of ,  19 . .,  the  defendant  en- 
tered into  possession  of  said  lands  under  said  will,  and  has 
ever  since  been  and  is  now  in  possession  thereof. 

VI.  [Continue  as  in  preceding  Form,  III  to  VI.] 
WHEREFORE,  etc. 

1524.  By  ward  against  guardian  (Wisconsin).^ 

I.  That  on  or  about  the  ....  day  of ,  19.  .,  the  de- 
fendant was  by  order  of  the court  of county 

duly  appointed  the  general  guardian  of  the  estate  of  the 
plaintiff,  and  thereafter  duly  quahfied  and  entered  upon  the 
discharge  of  his  duties  as  such  guardian,  and  continued  to  be 

such  guardian  until  the   ....  day  of ,  19. .   [or,  and 

still  is  such  guardian]. 

II.  That  the  defendant  during  his  said  guardianship  was 
in  possession  and  control  of  [describe  premises]  which  were 

'  If  the  plaintiff  be  a  minor  pointed,  and  such  appointment 
when  the  action  is  brought,  a  must  be  alleged  in  the  complaint, 
guardian    ad    litem    must    be    ap-      as  in  Form  863. 


Forms  1525,  1526.]  990  [Chapter  LXI. 

during  said  time  and  now  are  owned  in  fee  simple  by  plaintiff. 

III.     That  while  in  possession  of  said  premises  as  such 

guardian,  and  on  various  days  between  the  ....  day  of 

19..,  and  the  beginning  of  this  action,  the  said  defendant 
committed  acts  of  waste  upon  said  property,  as  follows  [here 
set  forth  acts  of  waste  as  in  preceding  forms]. 

WHEREFORE,  etc. 

1525.  By  joint  tenant  or  tenant  in  common  against  cote- 

nant  (Wisconsin). 

I.  That  the  plaintiff  and  the  defendant  are  seized  in  fee  as 
tenants  in  common  [or  joint  tenants]  of  the  following  de- 
scribed premises  [insert  description]  and  have  been  so  seized 
since  the  ....  day  of 19.  . 

II.  That  on  or  about  the  ....  day  of ,  19. .,  and  at 

various  times  thereafter  and  prior  to  the  commencement  of 
this  action  the  said  defendant  committed  acts  of  waste  upon 
said  premises  to  the  great  injury  of  the  plaintiff's  estate 
therein,  to-wit,  said  defendant  [here  allege  acts  of  waste  as  in 
Form  1522,  or  according  to  the  facts]. 

III.  That  by  reason  of  the  premises,  the  plaintiff's  estate 
in  said  lands  has  been  damaged  in  the  sum  of dol- 
lars. 

WHEREFORE,  etc. 

1526.  By  heirs  against  dowress  (Wisconsin) . 

I.  That  one  E. . . .  F. . . .  was  in  his  hfetime  seized  in  fee 

simple  and  in  possession  of  lands  in county,  of  which 

the  following  described  premises  are  a  part. 

II.  That  on  the  ....  day  of ,  19. .,  being  so  seized, 

he  died  intestate,  leaving  the  defendant  C . . . .  D . . . .  his 
widow. 

III.  That  the  defendant  C . . . .  D . . . .  thereafter  entered 
on  and  was  possessed  as  her  dower  during  her  life  of  one-thi  d 
part  of  said  lands,  to-wit,  the  following  described  premise  : 
[description  of  premises]  which  said  premises  were  du  y 
assigned  to  said  defendant  as  her  reasonable  dower  by  order 

of  the court  of county  entered  on  the  ....  day 

of ,19.. 

IV.  That  the  plaintiffs  were  left  by  the  said  E F 

his  only  children  and  heirs;  and  as  such  were,  at  the  time  of 


Chapter  LXI.]  991  [Forms  1527,  1528. 

the  committing  of  the  grievances  hereinafter  mentioned  and 
still  are,  entitled  to  the  reversion  in  the  above  described 
premises  subject  to  said  estate  in  dower. 

V.    [Allege  acts  of  waste  and  damage  therefrom.] 

WHEREFORE,  etc. 

1527.  By  reversioner  against  assignee  of  life  estate. 

I.  That  on  the  ....  day  of ,  19 . . ,  one  C ....  D ... . 

was  the  owner  in  fee  of  the  premises  hereinafter  described, 
and  that  on  said  day  the  said  C . . . .  D . . . .  conveyed  the 
same  to  the  plaintiff  in  fee. 

II.  That  at  the  time  of  the  said  conveyance  the  plaintiff 
made  and  delivered  to  the  said  C . . . .  D . . . .  a  life  lease  of 
said  premises  for  the  period  of  his  natural  life,  and  that 

thereafter  and  on  or  about  the  ....  day  of ,  19. .,  the 

defendant  E. . . .  F. . . .  became  possessed  of  the  life  estate 
and  interest  of  the  said  C . . . .  D .  .  .  .  and  thereupon  took 
possession  and  has  ever  since  remained  in  possession  of  said 
premises. 

III.  That  the  said  C D . . . .  is  still  alive  but  aged  and 

inferior,  and  in  the  ordinary  course  of  events  can  not  survive 
many  years. 

IV.  [Allege  acts  of  waste  and  consequent  damage  as  in 
III,  IV,  V  and  VI  of  Form  1522.] 

WHEREFORE,  etc.  [Demand  for  judgment  for  damages 
and  for  injunction  against  further  waste.] 

1528.  By  purchaser  at  sheriff's  sale,  for  waste  committed 

before  conveyance  (Wis.  Stats.  1913  sec.  3016). 

I.  That  on  the  ....  day  of ,  19.  .,  the  premises 

hereinafter  described  were  owned  in  fee  simple  by  one  K , . . . 
L. . . .,  but  were  subject  to  the  lien  of  a  judgment  theretofore 
recovered  by  C . . . .  D . . . .  against  E . . . .  F . . . .  and  dock- 
eted in  said  county  on  the  ....  day  of ,  19. .,  and 

that  on  the   ....   day  of   ,   19.  .,  the  sheriff  of  said 

county,  by  virtue  of  an  execution  issued  to  him  upon  said 
judgment,  sold  the  said  premises  which  are  bounded  and 
described  as  follows  [here  describe  the  premises]. 

II.  That  at  such  sale  the  plaintiff  became  the  purchaser, 
and  the  sheriff  executed  and  delivered  to  him  a  certificate  of 
the  sale,  and  subsequently,  and  on  the  ....  day  of , 


Forms  1529,  1530.]  992  [Chapter  LXI. 

19.  .,  and  before  this  action  executed  and  delivered  to  the 
plaintiff  a  deed  of  the  premises  pursuant  to  the  sale,  and  the 
plaintiff  paid  the  purchase-money  therefor. 

III.  That  intermediate  the  sale  and  the  delivery  of  the 
deed,  the  defendant  cut  and  carried  from  the  land  one  thou- 
sand pine-trees  [or  otherwise  charge  the  waste  committed  and 
resulting  damage  as  in  preceding  forms]. 

WHEREFORE,  etc. 

1529.  The  same,  by  redemptioner  against  purchaser. 

I.  [As  in  preceding  form.] 

II.  That  at  such  sale  the  defendant  became  the  purchaser 
of  said  premises  and  the  sheriff  executed  and  delivered  to  him 
a  certificate  of  the  sale  thereof. 

III.  That  afterwards,  and  before  the  expiration  of  [name 
period  of  redemption]  the  plaintiff,  by  virtue  of  a  judgment 
theretofore  recovered  by  him  against  said  E . . . .  F . . . . , 
which  judgment  was  a  lien  on  the  premises,  duly  redeemed 
the  same  from  said  sale  by  paying  the  necessary  amount 
therefor;  and  thereafter,  and  on  or  about  the   ....  day  of 

,  19 . .,  and  before  this  action,  the  sheriff  executed  and 

delivered  to  the  plaintiff  a  deed  of  the  premises  pursuant  to 
the  sale  and  redemption. 

IV.  [As  III,  in  the  preceding  form.] 
WHEREFORE,  etc. 

1530.  By  lessor  against  lessee  for  damages  and  an  in- 

junction (Wisconsin). 

I.  That  the  plaintiff,  being  then  and  ever  since  owner  in 
fee  simple  of  the  premises  hereinafter  mentioned,   on  the 

....  day  of ,  19 .  .,  by  a  lease  in  writing  then  made 

between  the  plaintiff  and  the  defendant,  under  their  hands 
and  seals  [or,  under  the  hand  and  seal  of  the  defendant],  the 
plaintiff  leased  to  the  defendant  [designate  term  and  premises, 
e.  g.  thus:  for  ten  years  from  said  date,  at  a  yearly  rent  of 
$1,000,  a  certain  dwelling-house,  with  stable  and  sheds 
attached,  and  ten  acres  of  lawn  and  woodland,  orchard  and 

garden,  at in  the  county  of ,  the  property  of 

the  plaintiff]. 

II.  That  said  lease  contained  a  covenant  on  the  part  of  the 
defendant,  of  which  the  following  is  a  copy  [copy  of  the  cove- 


Chapter  LXL]  993  [Form  1531. 

nani  as  to  waste  or  repairs].  [Or:  II.  That  the  defendant  in 
said  lease  covenanted  that  he  would,  stating  the  substance  of 
the  covenant.] 

III.  That  the  defendant  took  possession  of  the  premises 
under  said  lease,  the  same  being  then  in  good  repair  and 
condition;  but  that  they  have  since  become  ruinous  and  bad, 
and  the  lands  very  much  deteriorated  by  the  wilful  misman- 
agement and  improper  cultivation  thereof  by  the  defendant; 
that  he  has  ploughed  up  the  garden,  destroying  the  shrubbery 
and  flowers  therein,  and  has  cut  down  ten  ornamental  and 
shade  trees  standing  near  the  house,  and  has  cut  down  ten 
apple  trees  in  the  orchard  [or  in  like  manner  state  other  waste, 
according  to  the  fact]  and  has  otherwise  suffered  and  com- 
mitted great  waste  on  the  premises; by  reason  of  which  waste 

the  premises  are  worth dollars  less,  to  be  sold,  than 

they  were  when  the  defendant  took  possession  thereof;  and 
it  would  cost dollars  to  restore  them. 

IV.  That  the  defendant  threatens  to  cut  down  other  of  the 
ornamental  shade,  and  fruit  trees,  and  to  remove  the  parti- 
tions in  the  first  story  of  the  house,  and  turn  it  into  a  work- 
shop [or  other  threatened  waste]. 

WHEREFORE  the  plaintiff  asks  judgment:  (1)  That  the 
defendant  may  be  required  to  [restore  and]  repair  the  prem- 
ises; (2)  that  he  pay  to  the  plaintiff dollars  damages 

done  to  and  sufTered  by  the  premises  [the  plaintiff  hereby 
waiving  all  forfeitures  and  penalties  incurred  in  respect  to 
said  waste];  (3)  that  he  be  required  to  keep  the  same  in  good 
repair  and  condition  during  the  continuance  of  his  interest 
therein,  and  to  manage  and  cultivate  the  farm  in  a  proper  and 
husband-like  manner,  according  to  the  terms  of  the  lease, 
and  the  custom  of  the  country;  (4)  that  he  be  enjoined  from 
committing  any  further  waste,  and  particularly  from  [stating 
particular  act  to  be  enjoined]. 

1531.    The  same,  where  lessee  has  covenanted  to  leave 
improvements  made  by  him  on  the  premises. 

I.     [Allege  the  making  of  the  lease  and  its  terms  as  in  last 

preceding  form,  or  by  attaching  copy  of  the  lease  showing  that 

one  of  its  covenants  or  conditions  expressly  provided  that  all 

improvements  placed  in  the  premises  by  the  lessee  should  be 

left  there  and  become  the  property  of  the  plaintiff.] 
63 


Form  1532.]  994  [Chapter  LXI. 

II.  That  by  virtue  of  said  lease  said  defendant  entered  into 

possession  of  said  premises  on  the  ....  day  of ,  19. ., 

and  since  has  been  and  now  is  in  possession  thereof. 

III.  That  while  so  in  possession  said  defendant,  as  such 
lessee,  has  placed  certain  improvements  upon  the  said 
premises,  to-wit:  [describe  same  fully]  and  that  the  same  have 
become  and  are  annexed  to  said  premises  and  constitute  a 
part  of  the  said  real  estate,  and  are  now  by  virtue  of  said 
agreement,  the  property  of  the  plaintiff. 

IV.  That  notwithstanding  said  agreement  and  in  dis- 
re'ijard  of  the  rights  of  the  plaintiff  in  the  premises,  said 
defendant  threatens  and  is  about  to  sever  and  separate  said 
[machinery]  [or  otherwise  describe  the  improvement]  from  said 
mill,  and  to  remove  and  carry  the  same  away  therefrom, 
thereby  doing  great  and  irreparable  injury  and  damage  to  the 
plaintiff  and  his  said  property;  and  that  said  defendant  with 
his  agents,  servants,  acting  under  his  direction,  are  now  at 
work  in  so  separating  and  removing  the  said  improvements 
and  machinery  from  said  premises;  and  that  it  is  his  intention 
not  to  leave  such  improvement  on  said  premises  as  required 
by  said  agreement,  but  to  remove  all  of  the  same  and 
wholly  to  deprive  the  plaintiff  thereof  to  his  irreparable 
damage  and  injury. 

V.  The  plaintiff  alleges,  upon  information  and  belief, 
that  said  defendant  is  pecuniarily  irresponsible  and  that  an 
action  for  damages  against  him  would  not  afford  him  ade- 
quate relief  in  the  premises. 

WHEREFORE,  the  plaintiff  demands  judgment  that  the 
defendant  restore  to  said  mill  such  parts  of  said  improve- 
ments as  have  already  been  removed  therefrom  and  that  said 
defendant,  his  agents,  serv^ants,  and  employes  be  perpetually 
restrained  and  enjoined  from  separating  said  improvements 
and  machinery  so  placed  therein  by  them  as  aforesaid,  and 
from  removing  the  same  or  any  part  thereof,  and  from  inter- 
fering therewith  for  any  purpose  of  separation  or  removal  or 
injury  as  a  part  of  said  premises,  and  that  the  plaintiff  have 
such  further  relief  as  may  be  just,  with  costs. 

1532.    Complaint  for  waste,  general  form  (Minnesota). 

[In  Minnesota  the  forms  heretofore  given  in  this  chapter  for 
use  in  Wisconsin  may  be  used.     The  Minnesota  statute,  how- 


Chapter  LXL]  995  [Forms  1533,  1534. 

ever,  allows  judgment  for  treble  damages,  also  in  case  of  waste 
by  a  tenant  for  forfeiture  of  a  tenant's  unexpired  term  and 
eviction  from  the  property  in  case  the  waste  committed  equals 
the  value  of  such  unexpired  term  or  was  done  in  malice.  Minn. 
Gen.  Stats.  1913  sec.  8088.  Where  such  relief  is  sought,  the  fol- 
lowing additional  allegations  should  be  contained  in  the  com- 
plaint after  the  allegations  of  waste]: 

That  the  injury  thereby  done  to  the  said  property  is  the 

sum  of dollars  and  [more  than]  equal  to  the  value  of 

the  defendant's  unexpired  term. 

That  said  waste  was  committed  in  malice. 

WHEREFORE  the  plaintiff  demands  judgment:  (1) 
That  the  estate  of  the  defendant  in  the  said  property  be  for- 
feited; (2)  that  he  be  evicted  therefrom;  (3)  for dol- 
lars damages,  and  for  the  costs  of  this  action. 

1533.  Complaint  for  waste,  general  form  (North  and 

South  Dakota). 

[In  North  and  South  Dakota  treble  damages  are  given  for 
waste,  and  forfeiture  and  eviction  may  be  awarded  if  the  waste 
committed  be  equal  in  value  to  the  tenant's  estate  or  if  it  be 
done  in  malice.  N.  Dak.  Rev.  Codes  1905  sec.  7539,  7540. 
S.  Dak.  C.  C.  P.  1908  sec.  693-694.  The  forms  heretofore  given 
for  use  in  Wisconsin  may  be  used,  adding  thereto  the  additional 
allegations  given  inform  1532  for  use  in  Minnesota.] 

1534.  Complaint  for  waste,  general  form  (Iowa). 

[In  Iowa  the  forms  heretofore  given  in  this  chapter  for  use  in 
Wisconsin  may  generally  be  used.  Judgment  should  be  de- 
manded, however,  for  treble  damages.  Iowa  Ann.  Code  1897 
sec.  4303.  Judgment  of  forfeiture  and  eviction  may  also  be 
rendered  when  the  damages  found  are  more  than  two-thirds  of 
the  value  of  the  interest  of  the  defendant  in  the  premises.  Id. 
sec.  4304.  In  case  forfeiture  and  eviction  are  desired  the 
petition  should  contain,  after  the  allegations  of  waste,  the  follow- 
ing allegation]: 

That  the  injury  thereby  done  to  the  said  property  is  the 

sum  of dollars,  and  more  than  two-thirds  the  value 

of  the  interest  possessed  by  the  defendant  in  said  property. 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
estate  of  the  defendant  in  said  premises  be  forfeited,  and  that 


Form  1535.]  996  [Chapter  LXI. 

he   be   evicted   therefrom,    and   that   the   plaintiff   recover 
dollars  damages  and  costs. 

1535.    Complaint  for  waste,  general  form  (Nebraska). 

[In  Nebraska  treble  damages  are  given  and  judgment  of  for- 
feiture and  eviction  may  be  had  when  the  waste  exceeds  two- 
thirds  the  value  of  defendant's  interest  in  the  property.  Neb. 
R.  S.  1913  sec.  8244,  8245.  The  forms  given  for  use  in  Wis- 
consin may  be  used  with  the  additional  allegation  given  in  Form 
1534  for  use  in  Iowa.] 


CHAPTER  LXII. 

COMPLAINTS  FOR  TRESSPASS  TO  REAL 
PROPERTY. 


1536.  For  single  act  of  trespass. 

1537.  The  same,   for   cutting   and 

converting  timber. 

1538.  The     same,     for     removmg 

fence. 

1539.  For  various  repeated  acts  of 

trespass. 

1540.  For  entering  plaintiff's  house, 

defacing  the  same  and  in- 
juring personal  property 
therein. 

1541.  For    cutting    and    removing 

timber.   (Wisconsin.) 

1542.  For  treble  damages  for  will- 

ful injuries  to  trees.    (Min- 


nesota, Iowa,  North  Da- 
kota, South  Dakota,  and 
Nebraska.) 

1543.  For  treble  damages  for  forci- 

ble entry  or  detainer. 
(Minnesota,  North  Dako- 
ta and  South  Dakota.) 

1544.  For    trespass    and    mesne 

profits. 

1545.  Trespass  by  defendant's  ani- 

mals. 

1546.  Against  railway  company  for 

laying  and  operating 
tracks  on  highway  in  front 
of  plaintiff's  premises. 


1536.    For  single  act  of  trespass. 

L     That  on  the  ....  day  of ,  19 .  .,  the  plaintiff  was 

the  owner  and  in  possession  of  the  following  described  lands 
[insert  description]. 

II.  That  on  said  last  named  day  the  defendant  unlaw- 
fully broke  and  entered  upon  said  lands  and  trod  down  the 
plaintiff's  grass  and  grain  growing  thereon  and  destroyed  the 
same,  to  the  plaintiff's  damage dollars. 

WHEREFORE,  etc. 


1537.    The  same,  for  cutting  and  converting  timber. 

L     That  on  the.  .  .  .day  of ,  19.  .,  the  plaintiff  was 

the  owner  and  in  possession  of  the  following  described  lands 
[insert  description]. 

IL  That  on  said  last  named  day  the  defendant  unlawfully 
broke  and  entered  upon  said  lands  and  there  cut  down  and 
carried  away  the  trees  and  timber  of  this  plaintiff,  and  con- 
verted and  disposed  of  the  same  to  his  own  use,  to  plaintiff's 
damage dollars. 

WHEREFORE,  etc. 


Forms  1538-1540.]  998  [Chapter  LXIL 

1538.  The  same,  for  removing  fence. 

I.  That  on  the. . .  .day  of ,  19. .,  the  plaintiff  was 

the  owner  and  in  possession  of  the  following  described  lands 
[insert  description]. 

II.  That  on  said  last  named  day  the  defendant  unlaw- 
fully broke  and  entered  upon  said  lands,  took  down  a  fence 
standing  upon  said  land  of  the  plaintiff,  and  removed  the 
same,  and  also  then  and  there  erected  another  fence  on  said 
land,  and  also  then  and  there  disturbed  the  plaintiff  in  the 
use  and  occupation  of  said  land,  and  prevented  him  from 
enjo^dng  the  same  as  he  otherwise  would  have  done,  to  his 
damage dollars. 

WHEREFORE,  etc. 

1539.  For  various  repeated  acts  of  trespsiss. 

I.  [As  in  Form  1536.] 

II.  That  on  said  last  named  day  and  at  various  times  be- 
tween said  date  and  the.... day  of ,  19..,  the  de- 
fendant unlawfully  broke  and  entered  upon  said  lands,  and 
with  feet  in  walking,  trod  down  and  ruined  the  grass  and 
grain  of  the  plaintiff  growing  thereon,  to  the  plaintiff's 
damage dollars. 

[Or:  with  his  cattle  depastured  the  grass  and  grain  of  the 

plaintiff  then  and  there  growing  and  of  the  value  of 

dollars.] 

[Or:  with  horses  and  wagons  and  other  vehicles  crushed  and 
spoiled  the  grass  and  grain  then  and  there  growing,  and  of  the 
value  of dollars.] 

[Or:  unlawfully  cut  down  and  carried  away  the  grass,  hay 
and  grain  of  the  plaintiff,  then  and  there  growing,  of  the 

value  of dollars,   and  carried  the  same  away  and 

converted  the  same  to  his  own  use,  to  the  damage  of  the 
plaintiff dollars.] 

WHEREFORE,  etc. 

1540.  For  entering  plaintiff's  house,  defacing  the  same 

and  injuring  personal  property  therein. 

I.     That  on  the. . .  .day  of ,  19.  .,  the  plaintiff  was 

the  owner  and  in  possession  of  that  certain  dwelling-house  in 

the. . .  .of ,  in  said  county  known  as  No.  . . .,   

street  [or  situated  upon  Lot. . . .  Block. . . .,  or  otherwise  de- 


Chapter  LXII.]  999  [Forms  1541,  1542. 

scribe  the  house]  with  the  furniture  and  other  personal  prop- 
erty therein. 

II.  That  on  the  said ....  day  of ,  19 . . ,  the  defend- 
ant forcibly  broke  and  entered  [or  where  the  entry  was  without 
force,  wrongfully  enteredl  the  said  dwelling  house  of  the 
plaintiff,  and  broke  and  injured  the  walls  and  doors  thereof 
[or  other  injury,  according  to  the  fact],  and  took  and  carried 
away  a  table  and  six  chairs,  the  property  of  the  plaintiff,  of 

the  value  of dollars,  and  converted  and  disposed  of 

said  goods  to  his  own  use  [or:  cut,  broke,  and  injured,  etc., 
describing  the  property  injured]  to  the  damage  of  the  plaintiff 
dollars. 

WHEREFORE,  etc. 

1541.  For  cutting  and  removing  timber  (Wis.  Stats. 

1913  sec.  4269). 

I.  That  on  the. . .  .day  of ,  19. .,  the  plaintiff  was 

and  ever  since  has  been  the  owner  and  in  possession  of  the  fol- 
lowing described  lands  and  premises,  to-wit  [describe  same]. 

II.  That  the  defendant,  on  said  day  and  divers  other 
days  between  that  day  and  the  commencement  of  this 
action,  did  unlawfully  and  without  authority,  break  and 
enter  upon  the  premises  aforesaid,  and  cut  and  remove  there- 
from. ,.  .thousand    pine    trees,    of    the    value    of 

dollars,  and  converted  the  said  trees  and  the  logs  cut  there- 
from to  his  own  use,  by  manufacturing  the  same  into  boards, 
planks,  joists,  studding,  scantling  and  shingles,  which  while 

in  the  possession  of  said  defendant  were  of  the  value  of 

dollars  [state  value  at  highest  market  at  any  time  since  tress- 
pass], to  the  plaintiff's  damage dollars. 

WHEREFORE,  etc. 

1542.  For  treble  damages  for  willful  injuries  to  trees 

(Minn.  Gen.  Stats.  1913  sec.  8090;  Iowa  Ann. 
Code  1897  sec.  4306;  N.  Dak.  Codes  1905  sec. 
6593;  S.  Dak.  C.  C.  P.  1903  sec.  2323;  Neb.  R.  S. 
1913  sec.  8247). 

I.  [Allege  title  and  possession  as  in  last  preceding  form.] 

II.  That  the  defendant,  in  the  month  of ,   19. ., 

and  at  various  other  times  between  that  time  and  the  com- 
mencement of  this  action,  entered  upon  the  said  land  of  the 


Forms  1543,  1544.]  1000  [Chapter  LXII. 

plaintiff,  and  did,  without  the  leave  of  the  plaintiff,  willfully 
and  wrongfully  cut  down  [or,  carry  off,  or,  cut  down  and 
carry  off]  300  pine  trees  and  100  oak  trees  [or  otherwise  de- 
scribe the  wood,  underwood,  trees,  or  timber]  of  the  value  of 

do\\sLTs;and  giTdled[or  otherwise  injured,  describing  the 

injury]  other  trees  [designating  number  and  kind]  of  the  value 

of dollars;  whereby  the  plaintiff  lost  said  trees  and 

timber,  and  the  land  belonging  to  the  plaintiff  was  greatly 

damaged  and  lessened  in  value,  to  the  amount  of 

dollars;  and  thereby  the  defendant,  by  the  force  of  section 
[here  insert  chapter  and  section  of  the  statute  applicable] 
forfeited  and  became  liable  to  pay  to  the  plaintiff  treble  the 
amount  of  said  damages. 

WHEREFORE  the  plaintiff  demands  judgment  against 
the  defendant  for  treble  the  amount  of  his  damages  as  afore- 
said, and  for  the  costs  of  this  action. 

1543.  For  treble  damages  for  forcible  entry  or  detainer 

(Minn.  Gen.  Stats.  1913  sees.  8092  and  8093; 
Bagley  v.  Sternbery,  34  Minn.  470;  26  N.  W.  602; 
N.  Dak.  Codes  1905  sec.  6592;  S.  Dak.  C.  C.  P. 
1908  sec.  2322;  Olsen  v.  Huntamer,  6  S.  Dak. 
364;61N.  W.  479). 

I.  That  at  the  time  hereinafter  mentioned,  the  plaintiff 
was  rightfully  and  peaceably  in  possession  of  a  certain  farm 
and  dweUing-house,  barns,  and  sheds  thereon,  described  as 
follows  [insert  description]. 

II.  That  on  the. . .  .day  of ,  19, .,  the  defendant 

forcibly  entered  thereon,  and  in  a  forcible  manner  and  with- 
out lawful  authority  disseized  the  plaintiff"  and  ejected  and 
put  him  out  of  said  lands  and  tenements,  and  by  force  and 
with  a  strong  hand  kept  him  out  therefrom,  to  his  damage 

dollars;  whereby  the  defendant,  by  force  of  section 

[insert  chapter  and  section  of  the  statute  applicable]  forfeited 
and  became  liable  to  pay  treble  the  amount  of  said  damages. 

WHEREFORE,  etc.  [demand  for  judgment  as  in  the  last 
preceding  form]. 

1544.  For  trespass  and  mesne  profits. 

I.  That  at  the  times  hereinafter  mentioned  plaintiff  was 
and  now  is  the  owner  in  fee  of  tlie  following  described  prem- 


Chapter  LXIL]  1001  [Forms  1545,  1546. 

ises  [describe  same]  and  entitled  to  the  immediate  possession 
thereof. 

II.  That    on    the.... day    of ,     19..,    defendant 

wrongfully  entered  in  said  premises  and  took  possession 
thereof  and  wrongfully  retained  possession  thereof  until 
and  during  that  time  cultivated  the  same  and  en- 
joyed the  rents  and  profits  thereof. 

III.  That  the  plaintiff  was  thereby  deprived  of  the  use  of 

said  premises  by  the  defendant  for  the  period  of and 

that  the  value  of  the  use  and  occupation  thereof  during  such 
period  was dollars. 

IV.  That  plaintiff  is  now  in  possession  of  said  premises. 
WHEREFORE,  etc. 

lo^o.    Trespass  by  defendant's  animals, 

I.  [As  in  Form  1536.] 

II.  That  on  said  day  the  defendant  wrongfully  and 
negligently  permitted  his  cattle  belonging  to  him  to  rove  and 
escape  from  his  lands;  that  said  cattle  did  wrongfully  and 
forcibly  break  and  enter  into  and  upon  plaintiff's  said  close. 

III.  [Allege  damage  as  in  previous  forms.] 
WHEREFORE,  etc. 

1546.  Against  railway  company  for  laying  and  operat- 
ing tracks  on  highway  in  front  of  plaintiff's 
premises. 

I.  [Allege  ownership  by  plaintiff  of  premises  abutting  the 
highway  and  that  such  ownership  extended  to  the  center  of 
the  highway  subject  only  to  the  public  use  thereof  as  and  for 
a  highway.] 

II.  [Allege  the  corporate  character  of  the  defendant  and  its 
business  as  a  common   carrier.] 

III.  That  on  or  about  the ....  day  of ,  19 . . ,  and  on 

divers  other  days  and  times  between  that  day  and  the  com- 
mencement of  this  action,  and  while  the  said  plaintiff  was  so 
possessed  of  said  premises,  the  said  defendant,  its  servants 
and  agents,  without  right  or  authority,  wrongfully  and  un- 
lawfully entered  upon  that  said  portion  of  plaintiff's  said 
premises  which  is  used  as  such  public  highway,  lying  between 
and  bounded  by  the  center  line  of  said  highway  and  the  front 
line  of  the  building  of  said  plaintiff,  erected  on  said  premises 


Form  1546.]  1002  [Chapter  LXII. 

above  described,  and  committed  acts  of  trespass  and  injuries 
to  said  premises  by  running  thereon  daily,  during  said  period, 
cars  propelled  by  steam  [or,  electricity]  to  the  injury  of  said 
premises,  in  the  depreciation  of  the  value  of  said  building 
and  real  estate,  and  to  the  injury  of  the  business  carried  on 
by  said  plaintiff  in  his  said  building  during  all  of  said  times, 
in  all  amounting  to  the  sum  of dollars. 

IV.  That  said  acts  of  trespass  have  been  committed 
without  the  consent  of  the  said  plaintiff,  and  without  author- 
ity of  law,  and  that  no  compensation,  by  way  of  award  or 
otherwise,  has  been  made  to  the  plaintiff  by  the  defendant  for 
the  said  damage  to  said  property. 

WHEREFORE,  etc. 


CHAPTEELXIII. 


COMPLAINTS  IN  EJECTMENT. 


1547.  Complaint  in  ejectment,  gen- 

eral form,  claiming  mesne 
profits. 

1548.  Complaint  in  ejectment,  gen- 

eral form,  nominal  dam- 
ages only.   (Wisconsin.) 

1549.  The  same,  claiming  damage 

for  mesne  profits  and  for 
waste.    (Wisconsin.) 

1550.  The  same,  for  dower  estate. 

(Wisconsin.) 

1551.  Complaint  in  ejectment,  gen- 

eral form,  no  damages. 
(Minnesota.) 

1552.  The    same,    with    claim    for 

mesne  profits  and  waste. 
(Minnesota.) 

1553.  The  same,  where  both  par- 

ties claim  from  common 
source.  (Wisconsin  and 
Minnesota.) 

1554.  The  same,  alleging  title  by 

devise.  (Wisconsin  and 
Minnesota.) 


1555.  The  same,  alleging  title  by 

descent.      (Wisconsin  and 
Minnesota.) 

1556.  The  same,  by  administrator. 

(Wisconsin.) 

1557.  Petition  in  ejectment,  general 

form,     nominal    damages. 
(Iowa.) 

1558.  The  same  in  action  against 

cotenant.   (Iowa.) 

1559.  The    same,    with    claim    for 

mesne  profits.    (Iowa.) 

1560.  Complaint  in   ejectment. 

(North     and    South    Da-" 
kota.) 

1561.  Petition  in  ejectment  with- 

out damages.    (Nebraska.) 

1562.  The    same,    with    claim    for 

mesne  profits.   (Nebraska.) 

1563.  The  same,  by  tenant  in  com- 

mon     against      cotenant. 
(Nebraska.) 

1564.  By  homestead  entrj'  man. 


The  term  ejectment  is  used  in  the  title  of  this  chapter 
simply  for  convenience.  The  common  law  action  of  eject- 
ment was  abolished  by  the  code,  and  it  is  not  used  in  the 
statutes  of  the  code  states  generally,  although  in  Wisconsin 
it  is  again  used  to  designate  the  action  to  recover  the  pos- 
session of  real  estate.  In  the  other  states  covered  by  this 
work  it  is  included  within  the  general  class  of  actions  denomi- 
nated generally  actions  concerning  or  for  the  recovery  of  real 
property,  except  in  Texas,  where  it  is  denominated  an  action 
of  trespass  to  try  title.  Wis.  Stats.  1913,  sec.  3073;  Ariz. 
R.  S.  1913  sec.  1627;  Ark.  Dig.  of  Stats.  1904  sec.  2734; 
Cal.  C.  C.  P.  1906  sees.  379,  380,  738  et  seq;  Colo.  Code  Ann. 
1911  sec.  4084;  Idaho  Rev.  Codes  1908  sees.  4538  et  seq. 
Iowa  Ann.   Code  1897  sec.  4182;  Kans.   Gen.  Stats.   1909 


Forms  1547,  1548.]  1004  [Chapter  LXIII. 

sees.  5641,  6214;  Mont.  Rev.  Codes  1907  sec.  6432;  Minn. 
Gen.  Stats.  1913  sec.  8060  et  seq.  Mo.  R.  S.  1909  sec. 
2382  et  seq.  Neb.  R.  S.  1913  sec.  8239;  N.  Dak.  Rev.  Codes 
1905  sec.  5904;  S.  Dak.  C.  C.  P.  1908  sees.  675,  et  seq. 
Okla.  Comp.  Laws  1909  sec.  6121  et  seq.  Oregon  Laws 
1910  sec.  325  et  seq.  Tex.  Civ.  Stats.  Ann.  1913  art.  7731; 
Utah  Comp.  Laws  1907  sec.  2989;  Wash.  Rem.  and  Bal. 
Code  1910  sees.  785  et  seq.  Wyo.  Comp.  Stats.  1910  sec. 
4966. 

1547.  Complaint  in  ejectment,  general  form,  claiming 

mesne  profits. 

I.  That  on  the.... day  of ,    19..,   plaintiff  was 

seized  in  fee  and  rightfully  possessed  of  that  certain  parcel  of 
land  [describe  same]. 

II.  That  while  plaintiff  was  so  seized  the  defendant  on 
said  day,  without  right,  entered  into  possession  of  the  said 
premises  and  ousted  and  ejected  the  plaintiff  therefrom,  and 
now  unlawfully  withholds  possession  thereof  from  the 
plaintiff  to  his  damage  in  the  sum  of dollars. 

III.  That  the  value  of  the  rents,  issues  and  profits  of 

said  premises  from  the  said day  of ,  19. .,  until  the 

commencement  of  this  action  is dollars. 

WHEREFORE  plaintiff  demands  judgment  against  de- 
fendant for  the  recovery  of  said  premises  and  for  the  sum  of 
dollars  damages  for  the  withholding  of  the  pos- 
session thereof,  also  for  the  sum  of dollars,  the  value 

of  the  rents,  issues  and  profits  thereof ,  together  with  the  costs 
of  this  action. 

1548.  Complaint  in  ejectment,  general  form,  nominal 

damages  only  (Wis.  Stats,  1913  sec.  3077). 

L     That  the  plaintiff  has  an  estate  in  fee  simple  [or,  for  the 

life  of  him  the  plaintiff,   or,  for  years  from ,   19.., 

specifying  the  life  or  the  length  of  the  term]  in  the  following  de- 
scribed real  estate  [here  insert  an  accurate  description  of  the 
premises  claimed,  designating  the  number  of  the  lot  or  township, 
if  any,  in  which  they  are  situated;  if  none,  stating  the  names  of 
the  last  occupants  of  lands  adjoining  the  same,  if  any,  or  by 
metes  and  bounds,  or  in  some  other  way  so  that  from  the  descrip- 
tion given  possession  of  the  premises  claimed  may  be  delivered.] 


Chapter  LXIII.]  1005  [Forms  1549,  1550. 

11.  That  the  plaintiff  is  entitled  to  the  possession  of  said 
premises,  and  that  the  defendant  unlawfully  withholds  the 
possession  thereof  from  him,  to  his  damage  in  the  sum  of  six 
cents. 

WHEREFORE  the  plaintiff  demands  judgment  against 
the  defendant  for  the  possession  of  said  premises  and  for  six 
cents  damages  and  for  the  costs  and  disbursements  of  this 
action. 

1549.  The  same,  claiming  damage  for  mesne  profits  and 

for  waste  (Wis.  Stats.  1913  sec.  3082). 

I.  [As  in  last  preceding  form.] 

II.  That  the  plaintiff  is  entitled  to  the  possession  of  said 
premises,  and  that  the  defendant  unlawfully  withholds  pos- 
session thereof  from  the  plaintiff,   and  has  so  unlawfully 

withheld    possession    thereof    since    the ....  day    of , 

19. .,  to  the  plaintiff's  damage dollars. 

III.  That,  while  so  unlawfully  in  possession,  said  de- 
fendant has  committed  waste  thereon,  by  removing  buildings 
and  parts  of  buildings  therefrom,  by  cutting  down,  and  dis- 
posing of  much  valuable  timber  and  trees  thereon,  by  quarry- 
ing and  carrying  away  therefrom  large  quantities  of  valuable 
building  stone  [or  otherwise  state  the  waste  complained  of] 
and  by  the  said  acts  of  waste  said  defendant  has  permanently 
injured  and  impaired  the  value  of  said  premises,  and  the 
plaintiff's  estate  therein,  to  the  plaintiff's  damage  in  the 
sum  of dollars. 

WHEREFORE  the  plaintiff  demands  judgment  against 
the  defendant:  (1)  For  the  possession  of  the  said  premises 
(2)  for dollars,  the  plaintiff's  damages  for  the  with- 
holding thereof,  and  for  the  waste  done  and  permitted 
thereon  as  aforesaid,  and  for  the  costs  and  disbursements  of 
this  action. 

1550.  The  same,  for  dower  estati  (Wis.  Stats.  1913  sec. 

3077). 

I.    That  the  plaintiff  and  one  E F were  lawfully 

married  on  the day  of ,  19..,  and  that  the  said 

E F. . . .  died  on  the. . .  .day  of ,  19. .,  and  that 

the  plaintiff  is  now  the  widow  of  the  said  E....   F.... 
deceased. 


Forms  1551,  1552.]  1006  [Chapter  LXIII. 

II.  That  at  the  time  of  his  death,  the  said  E . . . .  F . . . . 
was  seized  in  fee  simple  and  in  possession  of  the  following 
described  premises,  to-wit  [here  describe  premises  as  in  pre- 
ceding forms]. 

III.  That  the  plaintiff,  as  widow  of  said  E....  F.... 
owns  an  estate  for  her  life  in  one-third  part  of  the  above 
described  premises,  as  her  reasonable  dower,  and  is  entitled 
to  the  possession  thereof. 

IV.  That  the  above  named  defendants  deny  the  plain- 
tiff's said  dower  right,  and  unlawfully  withhold  the  pos- 
session of  her  said  one-third  part  of  said  premises,  from  the 
plaintiff,  to  her  damage dollars. 

[If  recovery  for  use  and  occupation,  or  waste,  is  sought,  add 
allegations  for  that  purpose,  as  in  last  preceding  form.] 

WHEREFORE  [add  demand  for  Judgment  as  in  preceding 
forms.] 

1551.  Complaint  in  ejectment,  general  form,  no  damages 

(Minnesota).^ 

I.  That  the  plaintiff  is  the  owner  in  fee  [or  is  the  owner  of 
an  estate  for  life,  or,  for  years,  as  the  fact  is]  and  entitled  to  the 
immediate  possession  of  [describing  premises]  in  the  county 
aforesaid. 

II.  That  defendant  is  now  in  possession  thereof  and  un- 
lawfully withholds  the  same  from  plaintiff. 

WHEREFORE  the  plaintiff  demands  judgment  for  the  re- 
covery of  the  possession  of  said  premises,  and  for  the  costs 
and  disbursements  of  this  action. 

1552.  The  same,  with  claim  for  mesne  profits  and  waste 

(Minn.  Gen.  Stats.  1913  sec.  8068). 

I.     That  on  the day  of ,  19. .,  the  plaintiff  was 

and  still  is  the  owner  in  fee  [or  for  life,  or,  for  years]  of  the 
following  described  premises  [insert  description]. 

XL  That  on  the  day  aforesaid  the  defendant  wrongfully 
entered  into  said  premises  and  ousted  the  plaintiff,  and  still 
unlawfully  withholds  the  possession  thereof  from  him. 

1  This  short  form  of  complaint  Pinney  v.  Fridley,  9  Minn.  34,  and 
is   substantially   held   sufficient   in      Merrill  v.  Bearing,  22  Minn,  376. 


Chapter  LXIIL]  1007  [Forms  1553,  1554. 

III.  That  the  value  of  the  use  and  occupation  of  said 
premises,  from  the  time  the  defendant  so  took  possession  up 

to  the  time  of  the  commencement  of  this  action,  is 

dollars. 

IV.  [If  recovery  for  damage  to  the  freehold  is  sought  insert 
the  proper  allegation,  as  in  the  second  form  in  this  chapter.]^ 

WHEREFORE  the  plaintiff  demands  judgment:  (1)  For 
the  recovery  of  the  possession  of  said  premises;    (2)  for  the 

sum  of dollars,  the  value  of  the  use  and  occupation 

of  said  premises;    (3)  for  the  further  sum  of dollars 

as  damages  for  injuries  to  said  premises;  (4)  for  the  costs 
and  disbursements  of  this  action. 

1553.  The  same,  where  both  parties  claim  title  from 

common  source  (Wisconsin  and  Minnesota).* 

I.  That  on  the ....  day  of ,  19 . . ,  one  E ....  F ... . 

was  the  owner  in  fee  and  in  possession  of  the  following  de- 
scribed premises  [insert  description]  and  that  on  said  day  the 
said  E . . . .  F . . . .  duly  conveyed  the  same  in  fee  to  the 
plaintiff,  who  is  still  the  owner  in  fee  and  entitled  to  the 
possession  thereof. 

II.  [Allege  withholding  of  possession,  etc.,  as  in  preceding 
forms.] 

1554.  The  same,  alleging  title  by  devise  (Wisconsin  and 

Minnesota) . 

I.  That  on  the. . .  .day  of ,  19.  .,  one  E. . . .  F. . . . 

was  lawfully  seized  as  owner  in  fee  simple,  and  was  in  pos- 
session of  the  following  described  premises  [insert  descrip- 
tion.] 

II.  That  on  said  day  the  said  E. . . .  F. . . .  died  leaving  a 
last  will  duly  executed,  wherein  he  devised  to  plaintiff  the 
said  premises. 

*  A    claim   for    permanent    inju-  "W.  520. 

ries  to  the  estate  while  in  defend-  '  This    method    of    pleading    is 

ant's   possession   should   be    made  useful  because  if  the  complaint  be 

in  the  ejectment   action,   as  it   is  verified  the  defendant  must  admit 

part  of  the  same  cause  of  action.  common  source  of  title,  and  thus 

Pierro  v.  Ry.  Co.,  37  Minn.  314;  obviate  necessity  of  proving  pre- 

34  N.  W.  38;  39  Minn.  451;  40  N.  vious  title. 


Forms  1555,  1556.]  1008  *       [Chapter  LXIII. 

III.  That  on  the. . .  .day  of ,  19.  .,  said  will  was 

duly  proved  and  admitted  to  probate  in  the court  in 

and  for  the  county  of state  of 

IV.  That  on  the. . .  .day  of ,  19. .,  said  premises 

were  duly  assigned  to  plaintiff  in  fee  by  the  terms  of  a  fmaj 
judgment  of  distribution  then  and  there  duly  made  by  said 
court,  and  that  the  plaintiff  is  still  the  owner  in  fee  and 
entitled  to  the  possession  of  said  premises. 

V.  [Continue  as  in  the  appropriate  preceding  form.] 

1555.  The  same,  alleging  title  by  descent  (Wisconsin  and 

Minnesota) . 

I.  [As  in  last  preceding  form.] 

II.  That  on  said  day  the  said  E ....  F ...  .  died  intestate, 
leaving  these  plaintiffs  his  only  children  and  heirs  at  law. 

III.  That  thereafter  the  estate  of  the  said  E. . . .  F. . . . 

was  duly  administered  upon  in  the court  in  and  for  the 

county  of state  of ,  and  that  on  the. .  .  .day  of 

19.  .,  by  a  judgment  or  order  of  final  distribution, 

which  was  duly  made  by  said  court,  said  premises  were 
assigned  in  fee  to  plaintiffs,  who  are  still  the  owners  thereof 
in  fee  simple,  and  entitled  to  the  possession  thereof. 

IV.  [Continue  as  in  appropriate  preceding  form.] 

1556.  The  same,  by  administrator  (Wis.  Stats.  1913  sec. 

3083). 

I.  [As  in  last  two  preceding  forms.] 

II.  That  on  said  day  the  said  E . . . .  F . . . .  died  intestate, 
leaving  G . . . .  H . . . .  and  J . . . .  K . . . .  his  only  children  and 
heirs  at  law,  who  then  became  and  now  are  lawfully  seized 
as  owners  in  fee  simple  of  the  said  real  estate. 

III.  That  on  the.  .  .  .day  of ,  19. .,  this  plaintiff, 

upon  proceedings  duly  had  in  and  before  the court  of 

county  was  by  said  court  duly  appointed  administrator 

of  the  estate  of  said  E . . . .  F .  . . . ,  deceased,  and  thereafter 
duly  qualified  and"  entered  upon  the  duties  of  his  said  trust 
and  is  now  such  administrator,  and  as  such  entitled  to  the 
immediate  possession  of  said  real  estate. 

IV.  That  defendant  is  in  possession  of  said  premises  and 
unlawfully  withholds  the  same  from  the  plaintiff  as  such 
administrator,  to  his  damage dollars.     [Add  claim  for 


Chapter  LXIIL]  1009  [Forms  1557-1559 

mesne  profits,  if  sought  to  be  recovered,  and  demand  for  judg- 
ment as  in  preceding  forms.] 

1557.  Petition  in  ejectment,  general  form,  nominal  dam- 

ages (Iowa  Ann.  Code  1897  sec.  4187). 

I.  That  the  plaintiff  is  entitled  to  the  possession  of  the 
following  described  premises  [insert  accurate  description 
thereof]. 

II.  That  the  plaintiff  is  the  owner  of  said  premises  in  fee 
simple  [or,  is  the  owner  of  an  estate  for  the  life  of  him  the 
said  plaintiff  in  said  premises,  or  otherwise  state  the  nature  and 
extent  of  plaintiffs  interest]. 

HI.  That  the  defendant  unlawfully  keeps  the  plaintiff 
out  of  possession  of  said  premises,  to  the  plaintiff's  damage  in 
the  sum  of  six  cents. 

IV.  That  a  true  and  correct  abstract  of  the  title  of  said 
premises  is  attached  to  and  made  part  of  this  petition,  and 
marked  Exhibit  A.    [Iowa  Ann.  Code  1897  sec  4188.] 

WHEREFORE  plaintiff  demands  judgment  for  the  imme- 
diate possession  of  said  premises,  together  with  six  cents 
damages  and  costs. 

[Attach  abstract  of  title.] 

1558.  The  same  in  action  against  cotenant  (Iowa  Ann. 

Code  1897  sec.  4185). 

I  and  II.  [As  in  preceding  form,  specifying  however  the 
particular  share  of  the  estate  to  which  plaintiff  is  entitled  and 
the  nature  of  his  tenancy,  whether  joint  or  in  common.] 

III.  That  prior  to  the  commencement  of  this  action  the 
plaintiff  demanded  possession  of  said  premises  from  the  said 
defendant,  but  that  the  defendant  denied  the  plaintiff's 
right  to  the  same,  or  any  part  thereof,  and  that  the  defendant 
unlawfully  keeps  the  plaintiff  out  of  possession  of  said 
premises,  to  the  plaintiff's  damage  in  the  sum  of  six  cents. 

IV.  [Continue  as  in  last  preceding  form.] 

1559.  The  same,  with  claim  for  mesne  profits  (Iowa  Ann. 

Code  1897  sec.  4198). 

I  and  II.     [As  in  last  two  forms.] 

III.     That  the  defendant  unlawfully  keeps  the  plaintiff 

out  of  possession  of  said  premises,  and  has  unlawfully  kept 
04 


Forms  1560-1562.]  1010  [Chapter  LXIII. 

the  plaintilT  from  such  use  and  possession  since  the ....  day  of 

,  19. .,  up  to  the  time  of  the  commencement  of  this 

action,  to  the  plaintiff's  damage  in  the  sum  of dollars. 

IV.     [Continue  as  in  last  two  forms.] 

1560.  Complaint  in  ejectment  (North  Dakota  and  South 

Dakota) . 

[In  these  states  the  forms  given  previously  in  this  chapter  for 
use  in  Wisconsin  and  Minnesota  will  be  found  sufficient. 
N.  Dak.  Rev.  Codes  1905  Chap.  30;  S.  Dak.  C.  C.  P.  Chap.  29; 
Brady  v.  Krueger,  8  S.  Dak.  464;  66  N.  W.  1083;  Lewis  v.  Ry. 
Co.,  5  S.  Dak.  148;  58  N.  W.  580;  Hegar  v.  De  Groat,  3 
N.  Dak.  354;  56  N.  W.  150.] 

1561.  Petition  in  ejectment  without  damages  (Neb.  R.  S. 

1913,  sec.  8239). 

I.  That  said  plaintiff  has  a  legal  estate  in  and  is  entitled 
to  the  possession  of  the  following  described  premises,  to-wit 

[describe  premises  with  certainty],  situate  in county,  and 

said  defendant,  ever  since  the. . .  .day  of ,  19. .,  has 

unlawfully  kept  and  still  keeps  the  plaintiff  out  of  the  pos- 
session thereof. 

WHEREFORE  the  plaintiff  demands  judgment  for  the  de- 
livery of  the  possession  of  said  premises,  and  for  the  costs  of 
this  suit. 

1562.  The  same,   with  claim  for  mesne  profits    (Ne- 

braska) . 

I.  [As  in  last  preceding  form.] 

II.  That  the  defendant,  while  unlawfully  in  possession  of 
said  premises,  has  received  the  rents  and  profits  thereof  from 

the. . .  .day  of ,  19. .,  to  the  commencement  of  this 

action,  amounting  to  the  sum  of dollars,  and  has  ap- 
plied the  same  to  his  own  use,  to  the  plaintiff's  damage  in  the 
sum  of dollars. 

WHEREFORE  the  plaintiff  demands  judgment  for  the 
delivery  of  the  possession  of  said  premises  and  also  for  said 

sum  of dollars  for  said  rents  and  profits,  and  for 

costs  of  suit. 


Chapter  LXIIL]  1011  [Forms  1563,  1564. 

1563.  The  same,  by  tenant  in  ccmmon  against  cotenant 

(Nebraska) . 

I.  That  said  plaintiff  has  a  legal  estate  in  and  is  entitled 
to  the  possession,  as  a  tenant  in  common  with  the  defendant, 
of  the  following  described  premises,  to-wit  [describe  premises], 
situate  in county. 

II.  That  the  defendant  denies  that  the  plaintiff  has  any 
estate  in  said  premises  as  tenant  in  common  or  otherwise, 
and  claims  to  own  the  entire  estate,  and  that  said  defendant 

ever  since  the. . .  .day  of ,  19. .,  has  unlawfully  kept 

and  still  keeps  the  plaintiff  out  of  the  possession  thereof. 

[Add  allegation  of  receipt  of  rents  and  profits  and  demand  of 
judgment  as  in  preceding  forms.] 

1564.  By  homestead  entry  man  (precedent  in  Thompson 

V.  Easier,  148  Cal.  646,  84  Pac.  161). 

I.  That  on  the. . .  .day  of ,  19. .,  the  plaintiff  was 

lawfully  in  possession  of  the  following  described  real  estate 
[describe  same]  and  that  the  plaintiff  had  title  to  said  real 
estate  as  a  homestead  entry  man  under  the  laws  of  the  United 
States. 

II.  That  the  plaintiff  ever  since  said. . .  .day  of , 

19..,  has  been  and  now  is  the  owner  of  said  real  estate 
possessing  title  thereto  as  homestead  entryman,  and  has 
been  and  now  is  entitled  to  the  possession  thereof. 

III.  That  the  plaintiff  continued  in  possession  of  said 

presmises  from  the ....  day  of ,  aforesaid  until  on  or 

about  the ....  day  of 19 . . ,  when  the  defendant  wrong- 
fully and  unlawfully  entered  upon  and  took  possession  of  the 
same  [or  of  a  portion  thereof  described  as  follows]  and 
ousted  the  plaintiff  therefrom  and  now  unlawfully  withholds 

possession  thereof  from  the  plaintiff  to  his  damage 

dollars. 

WHEREFORE,  etc. 


CHAPTER  LXIV. 


COMPLAINTS  FOR  FORECLOSURE. 


1565.  Outline  of  complaint  to  fore- 

close a  mortgage. 

1566.  Complaint  for  foreclosure  of 

mortgage,  all  due,  general 
form.     (Wisconsin.) 
1557.  The   same,    amount  not   all 
due.     (Wisconsin.) 

1568.  The  same,   where  mortgage 

contained  covenant  to  in- 
sure, and  option  clause. 

1569.  Assignee  against  mortgagor, 

mortgagee  who  guaran- 
teed payment,  and  subse- 
quent purchaser,  who  as- 
sumed the  mortgage. 

1570.  Allegation  of  inadequacy  of 

security  where  a  receiver  is 
desired. 

1571.  By  mortgagee  in  possession 

against  parties  entitled  to 
redeem,  seeking  account- 
ing. 

1572.  To  have  deed  absolute  de- 

clared a  mortgage,  and 
foreclosed. 

1573.  For  foreclosure  of  mortgage, 

general  form.  (Minneso- 
ta.) 

1574.  For  foreclosure  of  mortgage, 

general  form.  (North  and 
South  Dakota.) 

1575.  For  foreclosure,  general  form. 

(Nebraska.) 

1576.  The  same,  where  there  are 

junior  incumbrancers,  and 


agreement  to  pay  taxes 
which  has  been  breached. 
(Nebraska.) 

1577.  Petition    in    mortgage   fore- 

closure, general  form. 
(Iowa.) 

1578.  The    same,     another    form. 

(Iowa.) 

1579.  The   same,    amount   not   all 

due.     (Iowa.) 

1580.  For  foreclosure  of  title  bond. 

(Iowa.) 

1581.  For    foreclosure    of    chatte 

mortgage,  general  form. 

1582.  The  same,  where  there  are 

subsequent  incumbrances. 

1583.  For  foreclosure  of  a  bill  of 

sale  of  chattels  given  as  a 
chattel  mortgage. 

1584.  For    foreclosure    of    pledge. 

(Iowa.) 

1585.  Complaint    for    strict    fore- 

closure of  land  contract. 

1586.  Complaint    to    enforce    for- 

feiture of  land  contract. 
(Minnesota.) 

1587.  To  revive  mortgage  and  for 

subrogation  in  favor  of  one 
who  has  paid  it,  expecting 
to  receive  a  new  one. 

1588.  Outline     of     complaint     by 

trustee  to  foreclose  mort- 
gage or  deed  of  trust  from 
corporation  for  the  benefit 
of  bondholders. 


.  The  pleading  and  practice  in  foreclosure  actions  differs 
in  details  in  the  various  states,  while  preserving  similarity 
in  the  fundamental  requirements.  No  attempt  is  made 
to  insert  here  a  separate  complaint  for  every  state  covered 


Chapter  LXIV.] 


1013 


[Introduction. 


by  this  work.  It  is  not  supposed  that  a  foreclosure  action 
will  be  commenced  in  any  state  without  a  careful  examina- 
tion of  the  statutes  of  that  state  bearing  on  that  subject. 
These  statutes  are  cited  in  the  note.^ 


iWis.  Stats.  1913  sec.  3154  etseq. 
A  claim  for  deficiency  may  be 
united  with  the  claim  to  foreclose; 
if  the  forclosure  be  only  for  an  in- 
stallment of  interest  the  action  is 
dismissed  if  the  amount  due  be 
brought  into  court  before  judgment 
and  stayed  if  it  be  brought  in  after 
judgment.  Redemption  may  be 
made  at  any  time  before  sale  which 
can  not  take  place  until  a  year  after 
the  judgment  and  if  there  be  a 
deficiency,  judgment  is  then 
rendered  therefor  against  the  par- 
ties personally  liable. 
:  Ariz.  R.  S.  1913  sec.  4113  et  seq. 
Plaintiff  may  elect  to  prosecute  ac- 
tion on  the  debt,  or  to  foreclose; 
either  action  resulting  in  discon- 
tinuance of  the  other,  with  costs. 
Judgment  is  rendered  for  the 
amount  due,  and  ,  execution  sale 
takes  place  without  interlocutory 
judgment,  subject  to  redemption  as 
on  ordinary  execution  sale, viz.,  by 
the  judgment  debtor,  his  heirs, 
representatives,  or  grantees  within 
six  months  after  sale  (sec.  1375), 
and  creditors  within  five  days  suc- 
cessively, according  to  priority, 
after  expiration  of  senior  redemp- 
tion rights  (sec.  1376,  1377). 
Junior  lienors  are  entitled  to  assign- 
ment of  the  senior  mortgagee's  in- 
terest. If  the  proceeds  of  sale  are 
insufficient  to  satisfy  the  judgment, 
execution  issues  for  deficiency. 

Ark.  Dig.  of  Stats.  1904  sec.  6233- 
6235,  6237.  Final  judgment  is 
given  in  the  first  instance,  for  a  sale 
and  recovery  of  the  debt;  execution 
issues  for  any  deficiency.  The 
mortgagor,  his  heirs  or  representa- 
tives, may  redeem  within  one  year 
from  the  date  of  sale;  but  the  right 
of  redemption  may  be  waived  in  the 
mortgage,  (sec.  5420). 

Cal.  C.  C.  P.  1906  sec.  726  et 
seq.    There  can  be  but  one  action 


for  the  recovery  of  the  debt  and 
enforcement  of  the  mortgage.  Judg- 
ment directs  sale  by  a  commissioner 
as  upon  execution,  and  if  there  be  a 
deficiency,  judgment  is  docketed 
against  the  defendants  personally 
liable.  Redemption  may  be  had  as 
upon  execution  sale,  at  any  time 
within  twelve  months,  (sec.  702, 
703). 

Colo.  Code  Ann.  1911  sec.  271- 
273.  Judgment  directs  sale  of  so 
much  as  may  be  necessary  to 
satisfy  debt;  if  not  all  due,  then  so 
much  as  may  be  due,  and  after- 
wards as  often  as  more  becomes 
due.  If  property  is  insufficient, 
judgment  is  docketed  against  de- 
fendant personally  liable. 

Idaho  Rev.  Codes  1908  sec.  4520- 
4523.     As  in  Colorado. 

Iowa  Ann.  Code  1897  sec.  4287 
et  seq.  Foreclosure  as  in  Arizona. 
Redemption  by  debtor  as  on  execu- 
tions sale,  viz.,  exclusive  right  with- 
in six  months,  and  concurrent  with 
other  creditors  for  six  months  there- 
after, (pec.  4045-4053). 

Kans.  Gen.  Stats.  1909  sec.  5992. 
Judgment  rendered  for  amount  due 
plaintiff  and  other  parties  to  action 
having  liens,  and  for  sale  of  prop- 
erty and  application  of  proceeds  by 
order  of  court.  Redemption  as  on 
execution;  by  debtor  in  possession 
within  eighteen  months  after  sale, 
first  twelve  months  exclusively  and 
thereafter  concurrently  with  credi- 
tors; if  not  in  possession,  redemp- 
tion by  owner  within  six  months, 
and  by  junior  lienors  within  three 
months  thereafter  (sec.  6071-6072). 
Minn.  Gen.  Stats.  1913  sec.  8152 
et  seq.  Procedure  same  as  in  other 
civil  actions.  Judgment  for  amount 
due  enforced  by  sale  of  real  estate 
as  on  execution;  and  execution  for 
deficiency.  Redemption  b^^  mort- 
gagor, or  those  clairning  under  him, 


Form  1565.] 


1014 


[Chapter  LXIV. 


1565.    Outline  of  complaint  to  foreclose  a  mortgage. 

I.  [Allege  the  execution  of  the  note  or  other  evidence  of 
indebtedness,  as  in  a  complaint  upon  such  instrument  alone, 
either  pleading  legal  effect  or  annexing  a  copy.  See  chapter 
XX.] 

II.  Allege  the  execution  of  the  mortgage  as  security  for 
the  note  and  the  recording  thereof,  pleading  the  legal  effect 
of  its  provisions  or  annexing  a  copy  as  an  exhibit.] 

III.  [Allege  the  failure  to  pay  principal  or  interest  or 
both;  also  any  breaches  in  the  covenants  or  agreements  of  the 
note  or  mortgage.] 

IV.  [Allege  the  amounts  expended  by  the  plaintiff  to  pay 
taxes,  insurance,  etc.,  to  protect  his  mortgage  interest,  and 
which  defendant  should  have  paid  under  the  agreements  of 
the  mortgage.] 

V.  [Prayer  for  judgment  of  foreclosure  and  sale  of  the 
premises  and  the  barring  of  subsequent  lien  holders^  according 
to  the  provisions  of  the  particular  state.] 


within  one  year  after  confirmation 
of  sale;  by  creditors  (sec.  8147),  suc- 
cessively within  five  days  after  ex- 
piration of  right  of  seniors. 

Mo.  R.  S.  1909  sec.  2828  et  seq. 
Procedure  same  as  in  civil  suits. 
Redemption  may  be  had  at  any 
time  before  sale;  on  foreclosure  of  a 
deed  of  trust,  the  cestui  qui  trust 
or  his  assignees  may  redeem  at  any 
time  within  one  year  from  the  date 
of  sale.  Execution  issued  for  any 
deficiency. 

Mont.  Rev.  Codes  1907  sec.  6861 
et  seq.  As  in  Colorado.  Judgment 
debtor,  or  successor  in  interest,  or 
creditor  having  lien,  may  redeem 
within  one  year  after  sale. 

Neb.  R.  S.  1913  sec.  8254  et  seq. 
On  petition  filed,  court  may  decree 
sale  of  the  mortgaged  premises;  on 
coming  in  of  the  report  of  sale  court 
may  direct  payment  of  any  de- 
ficiency by  the  mortgagor  and  may 
issue  execution  therefor.  Other  lien 
debtors  may  be  brought  in  to  satisfy 
deficiency.  Defendant  may  stay 
the  sale  proceedings  by  payment  of 
amount  due,  but  judgment  of  fore- 
closure and  sale  is  entered  and  re- 


mains in  force  against  subsequent 
default.  The  owner  may  redeem  at 
any  time  before  confirmation  of  the 
sale,  (sec.  8076). 

N.  Dak.  Rev.  Codes  1905  sec. 
7476  et  seq.  Foreclosure  action 
bars  action  for  debt;  and  vice 
versa,  unless  execution  in  the  action 
at  law  is  returned  unsatisfied. 
Other  lien  debtors  may  be  brought 
in  to  satisfy  deficiency.  There  may 
be  successive  sales  on  orders 
founded  upon  the  first  judgment;  or 
the  first  judgment  may  direct  sale 
of  the  whole  premises,  if  most  bene- 
ficial to  parties,  and  the  proceeds 
applied,  with  rebate  of  interest  for 
period  before  maturity  of  install- 
ments. The  mortgagor,  successors 
in  interest,  and  lien  creditors  may 
redeem  at  any  time  within  one  year 
after  date  of  sale. 

S.  Dak.  C.  C.  P.  1908  sec.  655  et 
seq.    As  in  North  Dakota. 

Okla.  Comp.  Laws  1909  sec.  5921, 
Personal  judgment  rendered  for 
amount  due  and  for  sale  of  the  prop- 
erty charged  and  application  of  the 
proceeds. 

Oregon   Laws   1910  sec.   422   et 


Chapter  I  XIV.] 


1015 


[Form  1566. 


1566.     Complaint  for  foreclosure  of  mortgage,  all  due, 
general  form  (Wisconsin). 

I.  That  the  defendant  [maker  of  note]  on  the  ....  day  of 

,  19. .,  for  value  received,  executed  and  delivered  to 

the  plaintiff  [or,  to  one  X. . . ,  Y. .  . .]  his  certain  promissory- 
note  in  writing  dated  on  that  day,  and  thereby  promised 

to  pay  to  the  said  [promisee]  or  order  the  sum  of 

dollars  with  interest  thereon  at  the  rate  of  ....  per  cent 
per  annum,  payable  annually  [or  otherwise  according  to  con- 
ditions of  note]  [or  set  forth  copy  of  note]. 

II.  That  in  order  to  secure  the  payment  of  the  said 
indebtedness  the  defendants  [makers  of  mortgage]  did  at 
the  same  time  duly  execute,  acknowledge  and  deliver  to 
the  said  [promisee]  a  mortgage  bearing  even  date  with  said 
note  and  conditioned  for  the  payment  of  the  said  indebted- 
ness represented  by  said  note,  whereby  they  mortgaged, 
granted,  conveyed,  bargained  and  sold  to  the  said  [promisee] 
those  certain  lands,  with  the  appurtenances,  situated  in 
the  county  of    state  of  Wisconsin,   and   described 


seq.  Decree  in  suit  for  foreclosure 
and  sale,  and  for  recovery  of  the 
amount  of  the  debt.  Execution 
against  the  property  charged,  and 
execution  over  for  deficiency;  but 
on  a  purchase-money  mortgage,  no 
deficiency  is  collectible.  Fore- 
closure bars  action  for.  debt;  and 
vice  versa,  unless  execution  in  ac- 
tion at  law  is  returned  unsatisfied. 
If  not  all  due,  sale  of  sufficient  to 
satisfy  amount  due,  and  judgment 
stands  against  future  defaults.  Pay- 
ment after  decree  and  before  sale 
stays  proceedings  until  subsequent 
default.  Redemption,  as  on  execu- 
tion sale,  by  judgment  debtor  and 
lien  creditors  wilhin  one  year  after 
confirmation  of  sale.  (sec.  246-248). 

Tex.  Civ.  Stats.  Ann.  1913  sec. 
2000.  Judgment  that  plaintiff  re- 
cover debt,  and  order  of  sale  of 
property  charged,  as  on  execution; 
execution  for  deficiency. 

Utah  Comp.  Laws  1907  sec.  3498 
et  seq.  There  can  be  but  one  ac- 
tion; judgment  for  amount  due, 
and  sale  of  property;  execution  for 
deli(;icncy.    If  debt  not  all  due,  suc- 


cessive sales  may  be  ordered;  Ixit 
the  whole  may  be  sold  in  the  first 
instance,  with  rebate  of  interest  for 
amounts  not  due.  Redemption  as 
on  execution,  within  six  months 
after  sale,  (sec.  3262). 

Wash.  Rem.  and  Bal.  Code  1910 
sec.  1116  et  seq.  Remedy  is  con- 
fined to  mortgaged  property,  except 
when  otherwise  agreed  in  the  mort- 
gage or  other  instrument  of  in- 
debtedness given  in  the  latter  case, 
judgment  over  for  deficiency.  De- 
cree enforced  by  execution.  Con- 
current actions  not  maintainable. 
Redemption  as  on  execution,  within 
one  year  after  date  of  sale,  (sec. 
594-602). 

Wyo.  Comp.  Stats.  1910  sec.  3671 
et  seq.  No  action  is  brought;  the 
sale  takes  place  by  virtue  of  power 
of  sale,  after  prescribed  notice.  Re- 
demption as  on  execution  sale,  by 
defendant  within  six  months  from 
the  sale,  and  by  lien  creditors  suc- 
cessively, within  sixty  days  after 
expiration  of  prior  redemption 
rights,  (sec.  4735-4739). 


Form  1566.]  1016  [Chapter  LXIV. 

in  said  mortgage  as  follows  [insert  full  description]  upon 
the  express  condition  that  if  the  said  [mortgagors]  their 
heirs,  executors,  administrators  or  assigns,  should  well 
and  truly  pay  or  cause  to  be  paid  to  the  said  mortgagee, 

his   heirs,   executors   or   assigns,   the   said   sum   of    

dollars  and  interest,  according  to  the  terms  of  said  note, 
then  the  said  note  and  said  mortgage  should  cease  and 
be  null  and  void. 

III.  That  among  other  provisions  it  was  provided  in  and 
by  said  mortgage,  that  the  said  [mortgagors]  should  pay  an- 
nually to  the  proper  ofTicers  all  taxes  which  should  be 
assessed  on  said  mortgaged  premises;  and  that  in  case  of 
the  foreclosure  of  said  mortgage  the  said  mortgagor  would 
pay  to  the  said  mortgagee  or  his  assigns,  in  addition  to  the 
taxable  costs  in  the  foreclosure  suit,  reasonable  and  cus- 
tomary solicitor's  fees  [or,  the  sum  of   dollars  for 

solicitor's  fees]. 

IV.  That  said  mortgage  was  duly  attested  by  two  sub- 
scribing witnesses,  and  was  duly  acknowledged,  so  as  to 
entitle  it  to  be  recorded,  and  was  received  for  record  in  the 

office  of  the  register  of  deeds  for  the  county  of in 

Wisconsin,  on  the  ....  day  of ,  19. .,  at  . . . .  o'clock 

in  the  ....  noon,  and  was  recorded  in  volume  ....  of 
mortgages,  on  page 

V.  That  the  plaintiff  is  still  the  lawful  owner  and  holder 
of  said  note  and  mortgage  [or,   if  plaintiff  is  an  assignee 
of  the  original  payee]:     That  on  the    ....   day  of   ....... 

19. .,  the  said  note  and  mortgage  was  duly  sold  and  assigned 
to  the  plaintiff  for  value,  and  that  he  is  now  the  lawful 
owner  and  holder  thereof. 

VI.  That  the  said  defendants  [mortgagors]  have  failed  to 
comply  with  the  terms  of  the  said  note  and  the  conditions 
of  the  said  mortgage  by  failing  and  neglecting  to  pay  the 

sum  of     dollars,  which  became  due  and  payable  as 

principal  on  the   ....   day  of ,  19. .,  and  by  failing 

and  neglecting  to  pay  the  sum  of   dollars  interest 

which  became  due  and  payable  on  the  ....  day  of , 

19 . . ,  and  by  failing  and  neglecting  to  pay  the  taxes  and 
assessments  which  have  been  assessed,  taxed  and  levied 
on  and  against  said  mortgaged  premises  for  the  year  19. ., 
by  the  proper  authorities. 


Chapter  LXIV.]  1017  [Form  1566. 

VII.  That  there  is  now  justly  due  to  the  plaintiff  upon 
said  note  and  mortgage  the  sum  of dollars  as  prin- 
cipal, with  interest  thereon  from  the   ....  day  of   , 

19. .,  at  ....  per  cent  per  annum,  and  the  further  sum  of 
[here  state  all  other  sums  due]. 

VIII.  That  the  defendants  [insert  names  of  all  the  de- 
fendants except  those  personally  liable  for  the  debt]  have  or 
claim  to  have  some  interest  in  or  lien  upon  the  said  mort- 
gaged premises,  or  some  part  thereof,  which  interest  or 
lien,  if  any,  has  accrued  subsequently  to  the  lien  of  said 
mortgage,  and  that  no  proceedings  have  been  had,  at  law 
or  otherwise,  for  the  recovery  of  the  sum  secured  by  said 
note  and  mortgage,  or  any  part  thereof,  and  that  no  part 
thereof  has  been  paid  or  collected  except  the  interest  up 
to  the  ....  day  of ,  19 . . . 

IX.  [//  the  premises  are  inadequate  security  and  an  injunc- 
tion be  desired:]  That  the  said  premises  are  an  inadequate 
security  for  the  said  sum  secured  by  said  note  and  mortgage, 
with  interest  and  costs;  that  the  value  of  said  premises 
consists  in  great  part  of  buildings,  fences,  and  standing 
and  growing  timber,  and  that  said  plaintiff  fears  that  the 
defendants  [mortgagors  and  occupants]  will,  unless  enjoined 
by  this  court,  commit  waste  upon  said  premises  by  removing, 
injuring  or  destroying  said  buildings  or  fences,  and  cutting 
down  and  hauling  away  said  timber,  or  by  other  acts  of 
waste;  and  that  unless  so  enjoined  they  will,  by  such  and 
other  acts  of  waste  thereon,  impair  the  value  of  said  mort- 
gaged premises,  and  thereby  so  diminish  and  impair  said 
plaintiff's  security  as  to  prevent  him  from  realizing  the 
amount  of  said  note  and  mortgage  from  the  same.  [Insert 
allegation  of  insolvency  of  the  mortgagors,  if  such  be  the  fact.] 
.,  WHEREFORE  the  plaintiff  demands  judgment  of  fore- 
closure and  sale  of  the  said  mortgaged  premises  as  provided 
by  law;  that  the  amounts  due  the  plaintiff  for  principal, 
interest,  costs,  disbursements  and  solicitor's  fees  be  adjudged 
and  determined  as  well  as  the  amount  of  unpaid  tax  liens 
upon  said  premises;  that  said  defendants  and  all  persons 
claiming  under  them,  or  any  or  either  of  them,  subsequent 
to  the  commencement  of  this  action  may  be  barred  and 
foreclosed  of  all  right,  claim,  lien  and  equity  of  redemption 
in  said  premises,  except  the  right  to  redeem  the  same  before 


Form  1567.]  1018  [Chapter  LXIV. 

sale,  as  provided  by  law;  that  the  said  premises,  or  such 
part  thereof  as  may  be  sufficient  to  pay  the  amounts  due 
upon  said  note  and  mortgage  may  be  adjudged  to  be  sold, 
unless  redeemed  within  the  time  and  in  the  manner  pro- 
vided by  law,  and  that  the  said  tax  liens  be  paid,  and  the 
plaintiff  paid  the  amount  due  on  said  notes  and  mortgage, 
with  interest  to  the  time  of  such  payment,  and  the  costs 

and  disbursements  of  this  action,  and  the  sum  of 

dollars,  solicitor's  fees,  with  interest  on  the  same,  as  allowed 
by  law,  from  date  of  judgment,  out  of  the  proceeds  of  such 
sale,  so  far  as  the  moneys  arising  from  such  sale  and  prop- 
erty applicable  thereto  will  pay  the  same,  and  that  the 
plaintiff  may  have  judgment  and  execution  for  any  deficiency 
remaining  unpaid  after  applying  the  proceeds  of  said  sale 
thereon  as  prescribed  by  law  against  the  said  [defendants 
personally  liable]  who  are  personally  liable  for  the  payment 
of  the  debt  secured  by  said  mortgage;  and  that  the  defen- 
dants [mortgagors  and  occupants]  be  enjoined  from  commit- 
ting waste  on  said  premises,  or  doing  any  other  act  that 
may  impair  the  value  of  the  same  at  any  time  between 
the  date  of  such  judgment  and  the  date  of  the  sale  of  said 
premises;  and  that  the  plaintiff  have  such  other  or  further 
judgment,  order  or  relief  as  may  be  just  and  equitable. 

1567.    The  same,  amount  not  all  due  (Wisconsin). 

[Follow  preceding  form,  but  add  to  allegation  VII]:  and  that 

the   further  sum  of    dollars  principal   and    

dollars  interest  will  become  due  upon  said  note  and  mortgage 
on  the day  of ,  19 .  . . 

[Prayer  for  Judgment  as  follows :] 

WHEREFORE  the  plaintiff  demands  judgment  of  fore- 
closure and  sale  of  said  mortgaged  premises  as  provided 
by  law;  that  the  amounts  actually  due  the  plaintiff  for  prin- 
cipal, interest,  costs,  disbursements  and  solicitor's  fees, 
as  well  as  the  amounts  of  unpaid  tax  liens  upon  said  prem- 
ises and  the  amounts  to  grow  due  hereafter  upon  said  note 
and  mortgage  be  adjudged  and  determined,  that  said 
defendants  and  all  persons  claiming  under  them  or  either 
of  them  subsequent  to  the  commencement  of  this  action 
may  be  barred  and  foreclosed,  etc.  [proceed  as  in  last  pre- 
ceding form]. 


Chapter  LXIV.]  1019  [Form  1568. 

1568.    The  same,  where  mortgage  contained  covenant  to 
insure,  and  option  clause. 

I  and  II.     [As  in  Form  1566.] 

III.  That  it  was  further  provided  in  and  by  said  mort- 
gage that  the  said  defendant  [mortgagor]  his  heirs,  executors, 
administrators  or  assigns,  should  pay  annually  to  the 
proper  officers  all  taxes  which  should  be  assessed  on  said 
mortgaged  premises,  on  or  before  the  first  day  of  May 
next  after  such  taxes  shall  have  become  due  and  payable; 
and  should  keep  the  buildings  on  said  mortgaged  premises 
insured  against  loss  or  damage  by  fire  in  some  solvent 
insurance  company  so  long  as  the  money  secured  by  said 
mortgage  should  remain  unpaid,  to  the  amount  of  at  least 

dollars,  and  should  assign  or  keep  assigned  to    said 

mortgagee  or  his  assigns  the  policy  or  policies  of  such  in- 
surance, and  in  case  of  failure  so  to  do,  then  that  it  should 
be  lawful  for  said  mortgagee  or  his  assigns  to  effect  such 
insurance,  and  that  the  premium  or  premiums,  and  other 
legal  expenses,  fees,  costs,  and  charges  paid  for  effecting 
the  same,  together  with  interest  thereon  at  the  rate  of  .... 
per  cent  per  annum,  should  be  a  lien  on  said  premises, 
and  should  be  added  to  the  amount  of  said  note  and  mort- 
gage; and  that  it  was  further  covenanted  and  agreed  in 
said  mortgage  that  in  case  of  nonpayment  of  any  sum  of 
money  [either  of  principal,  interest,  insurance  money  or 
taxes]  at  the  time  or  times  when  the  same  should  become 
due  according  to  the  conditions  of  said  note  or  mortgage, 
or  any  part  thereof,  or  in  case  of  any  neglect  or  refusal 
to  keep  said  buildings  insured,  or  the  policy  or  policies 
assigned  as  aforesaid,  then  in  such  case  the  whole  amount 
of  said  principal  sum  should,  at  the  option  of  said  mort- 
gagee or  his  assigns,  be  deemed  to  have  become  due,  and 
the  same,  with  interest  thereon  at  the  rate  aforesaid,  should 
thereupon  be  collectible  in  a  suit  at  law  or  by  foreclosure 
of  said  mortgage,  in  the  same  manner  as  if  the  whole  of 
said  principal  sum  had  been  made  payable  at  the  time 
when  any  such  failure  in  any  payment  should  occur  as 
aforesaid ;  and  that  in  case  of  the  foreclosure  of  said  mortgage 
the  said  mortgagors  would  pay  to  said  mortgagee  or  his 
assigns,  in  addition  to  the  taxable  costs  in  the  foreclosure 
suit,  reasonable  and  customary  solicitor's  fees. 


Form  1569.]  1020  [Chapter  LXIV. 

IV.  and  V.     [As  in  Form  1566.] 

VI.  That  the  said  defendant  [mortgagor]  has  failed  to 
comply  with  the  terms  of  the  said  note  and  the  conditions 
of  the  said  mortgage  by  failing  and  neglecting  to  pay  the 

sum   of    dollars   which   became    due    and    payable 

on  the  ....  day  of ,  19. .,  and  by  failing  and  neglect- 
ing to  pay  the  taxes  and  assessments  which  have  been 
assessed  and  levied  on  and  against  said  mortgaged  premises 
for  the  year  19. .,  by  the  proper  authorities,  and  by  failing 
and  neglecting  to  keep  the  buildings  on  said  mortgaged 
premises  insured  in   a  solvent  insurance  company  in  the 

sum  of dollars,  and  to  keep  assigned  to  said  plaintiff 

the  policy  or  policies  of  such  insurance  as  covenanted  in 
said  mortgage;  and  that  by  reason  of  the  aforesaid  defaults 
of  the  said  mortgagors  the  plaintiff  was  obliged  to  pay  the 

sum  of    dollars  for  insurance  upon  said  buildings 

on  the   ....  day  of   ,  19..,  and  that  said  plaintiff 

did,  on  the  ....  day  of ,  19.  .,  elect  that  the  whole 

amount  of  the  principal  sum  aforesaid  should  become 
due,  and  on  said  last  named  day  duly  notified  said  defen- 
dants [mortgagors]  of  such  election  and  demanded  the 
immediate  payment  of  the  full  amount  of  said  principal 
sum  and  of  the  interest  due  thereon,  of  which  said  notice 
a  copy  is  hereto  attached  and  marked  Exhibit  A,  and  made 
a  part  of  this  complaint. 

[Prayer  for  judgment  as  in  Form  1566,  inserting  claim 
that  amounts  paid  for  insurance  be  ascertained  and  added  to 
mortgage.] 

1569.  Assignee  against  mortgagor,  mortgagee  wlio  guar- 
anteed payment,  and  subsequent  purchaser,  who 
assumed  the  mortgage. 

[Insert  in  either  of  preceding  forms,  at  the  proper  place^ 
the  following  allegations:] 

That  on  the    ....    day  of   ,   19..,  the  defendant 

[mortgagee]  by  an  instrument  in  writing  under  his  hand 
and  seal,  duly  assigned  said  bond  and  mortgage  to  the 
plaintiff  for  value,  and  thereby  and  for  a  consideration 
expressed  therein,  guaranteed  to  the  plaintiff  the  payment 
of  said  bond  and  mortgage  [or,  which  assignment  contained 
a  covenant,  of  which  the  following  is  a  copy,  setting  it  forth]. 


Chapter  LXIV.]  1021  [Forms  1570,  1571. 

That  on  the   ....   day  of ,  19..,  the  defendants 

[mortgagor]  and  [his  grantee]  entered  into  an  indenture  under 
their  hands  and  seals,  whereby  the  said  [mortgagor]  conveyed 
to  said  [grantee]  the  mortgaged  premises,  subject  to  said 
mortgage,  and  said  [grantee]  covenanted  that  he  would 
pay  off  and  discharge  the  same  as  a  part  of  the  consideration 
of  said  conveyance  [or  otherwise,  as  the  covenant  was], 

[Or,  where  the  conveyance  subject  to  the  mortgage  was  not 

signed  by  the  grantee]:  That  on  the  ....  day  of ,  19 .  ., 

the  defendant  [mortgagor]  by  deed  dated  on  that  day,  duly 
conveyed  said  premises,  subject  to  said  mortgage,  to  the 
defendant  [owner  of  equity  of  redemption];  which  deed  con- 
tained a  covenant  on  the  part  of  the  latter,  of  which  the 
following  is  a  copy  [copy  of  covenant  to  assume  mortgage]. 
And  said  conveyance  thereupon  was  accepted  by  said 
[grantee]. 

1570.  Allegation  of  inadequacy  of  security  where  a  re- 

ceiver is  desired. 

[Insert  in  either  of  the  preceding  forms]:  That  the  mort- 
gaged premises  consist  of  [briefly,  stating  the  situation,  e.g  ] 
a  single  village  lot,  with  a  house  thereon,  which  is  old  ana 
out  of  repair,  and  rapidly  deteriorating;  and  the  present 

value  of  the  premises  is  about    dollars,   and  they 

are  subject  to  a  prior  mortgage,  on  which  about    

dollars  are  due.  That  they  are  a  scanty  and  insufficient 
security  for  the  plaintiff's  mortgage  debt,  and  that  the 
defendants,  who  are  personally  liable  therefor,  are  insolvent. 

[And  insert  in  the  prayer  for  relief]:  That  a  receiver  of 
the  rents  and  profits  be  appointed,  by  order  of  the  court, 
to  apply  the  same  to  the  plaintiff's  demand. 

1571.  By  mortgagee  in  possession  against  parties  en- 

titled to  redeem,  seeking  accounting. 

[Allege  execution  of  note  and  mortgage,  default,  etc.,  as  in 
preceding  forms,  and  proceed  as  follows:] 

That  after  the  mortgage  debt  became  due  as  aforesaid, 
the  plaintiff  entered  into  possession  of  the  mortgaged  prem- 
ises, and  the  receipt  of  the  rents  and  profits  thereof,  and 
has  since  continued,  and  still  is,  in  possession. 


Form  1571.]  1022  [Chapter  LXIV. 

That  the  said  rents  and  profits  have  not  been  sufficient  in 
amount  to  equal  the  annual  interest  upon  the  said  bond  and 
mortgage  [or  state  otherwise,  as  the  fact  may  be]. 

That  the  plaintiff  has  laid  out  considerable  expenditures 
for  permanent  improvements  upon  said  premises,  to-wit 
[stating  the  general  nature  and  value  of  same]  which  he  claims 
should  be  allowed  him  as  an  off-set  against  so  much  of  said 

rents  and  profits.     And  has  also  paid  the  sum  of   

dollars  for  taxes  and  assessments  [or,  if  any  prior  lien  has 
been  discharged,  state  the  nature  of  the  lien,  amount,  and  time 
of  payment  of  same];  all  of  which  sums  the  said  plaintiff 
also  claims  should  be  allowed  him,  and  credited  on  bis 
account  against  so  much  of  said  rents  and  profits;  which 
several  sums,  when  so  applied  and  credited  to  the  said 
plaintiff,  charging  the  plaintiff  with  the  amount  of  the 
rents  and  profits  so  received  by  him,  will  leave  remaining 
due  to  said  plaintiff,  on  his  said  bond  and  mortgage,  about 
dollars. 

That  the  defendant  [junior  incumbrancer]  has,  or  claims 
an  interest  in  said  mortgaged  premises,  under  and  by  virtue 
of  a  mortgage  thereon  from  the  said  defendant  [mortgagor]' 
rub>equent  to  the  mortgage  of  the  plaintiff;  and  the  defen- 
dant Q.  —  R. . . .  has,  or  claims,  an  interest  therein,  etc., 
etc.  [setting  forth  generally  the  interest  of  the  respective  parties]. 

That  the  plaintiff  has  applied  to  the  said  defendants 
[junior  incumbrancers]  and  requested  them  to  pay  the  plaint- 
iff the  said  sum  so  due  on  the  bond  and  mxortgage  held  by 
the  plaintiff,  or  come  to  an  accounting  with  him  thereon 
for  the  said  rents  and  profits  [permanent  improvements 
and  advances],  and,  after  the  proper  charges  and  credits, 
pay  the  said  plaintiff  what  should  appear  to  be  due  him  on 
his  said  bond  and  mortgage;  or,  in  default  thereof,  to  release 
their  right  and  equity  of  redemption  in  said  mortgaged 
premises.  But  the  said  defendants  have  hitherto  refused, 
and  still  refuse  so  to  do,  or  to  comply  with  any  part  of  said 
plaintiff's  request. 

WHEREFORE  the  plaintiff  demands  judgment  of  fore- 
closure and  sale  of  said  mortgaged  premises  as  provided 
by  law,  that  an  account  may  be  taken  of  the  amount  due 
and  owing  to  the  plaintiff  for  principal  and  interest  on  his 
said  bond  and  mortgage;  and  that  an  account  may  also 
be  taken  of  the  rents  and  profits  of  the  said  mortgaged 


Chapter  LXIV.]  1023  [Forms  1572,  1573. 

premises  which  have  been  received  by  said  plaintiff,  and 
also  of  the  expenditures  of  the  said  plaintiff  for  permanent 
improvements,  and  for  taxes  and  assessments  [or,  for  the 
amount  so  paid  for  prior  incumbrances,  etc.,  as  the  case 
may  be]  that  the  amount  due  the  plaintiff  be  adjudged  and 
determined  [continue  as  in  preceding  forms]. 

1572.  To  have  deed  absolute  declared  a  mortgage,  and 

foreclosed.^ 

[Allege  existence  of  the  debt,  as  In  preceding  forms  and  then 
allege  giving  of  deed  instead  of  mortgage,  substantially  as 
follows:] 

That  the  defendants  [mortgagors]  on  or  about  the   

day  of ,  19. .,  executed,  acknowledged  and  delivered 

to  the  plaintiff  a  deed  in  fee  simple,  whereby  the  said  [mort- 
gagors] conveyed  and  sold  to  the  plaintiff  the  following  de- 
scribed premises  [insert  description]  which  said  deed  was 
intended  and  agreed  by  the  parties  to  be  and  to  operate 
simply  as  a  mortgage  of  said  premises,  and  as  security 
for  the  payment  of  the  debt  aforesaid  with  interest  [other 
allegations  substantially  as  in  preceding  forms,  inserting  in 
demand  for  judgment];  that  the  said  deed  may  be  adjudged 
to  be  a  mortgage  and  a  first  lien  upon  said  premises  for  the 
amount  of  said  debt  and  interest. 

1573.  For  foreclosure  of  mortgage,  general  form  (Min- 

nesota). 

I.  That  on  the day  of ,  19 . . ,  the  defendant 

[promisor]  executed  and  delivered  to  the  plaintiff  his  promis- 
sory note,  of  which  the  following  is  a  copy  [insert  copy  of 
note]. 

II.  That  to  secure  payment  of  said  note  the  defendants 
[mortgagors]  at  the  same  time  duly  executed  and  acknowl- 
edged and  delivered  a  mortgage  bearing  date  on  that  day, 
whereby  they  mortgaged,  conveyed  and  sold  to  the  plaintiff 
the  following  described  premises  with  their  appurtenances 
[insert   description]   upon   consideration,   however,    that   if 

•For  a  case  involving  this  prin-  volved  and  adjudicated  upon,  see 

ciple,  where  a  deed  was  held  to  be  Schneider  v.  Reed,  123  Wis.  488; 

in  fact  a  mortgage,  and  a  number  101  N.  W.  682. 
of    equitable    interests    were    in- 


Form  1573.]  1024  [Chapter  LXIV. 

the  said  [mortgagors],  their  heirs,  executors  and  adminis- 
trators should  well  and  truly  pay  or  cause  to  be  paid  to 
the  said  plaintiff,  his  heirs,  executors,  administrators  or 
assigns  the  said  sum  of dollars  with  interest,  accord- 
ing to  the  terms  of  said  note,  then  said  mortgage  should 
be  null  and  void;  otherwise  to  remain  in  full  force  and 
efTect.  That  it  was  further  provided  in  and  by  said  mort- 
gage that  [here  insert  other  provisions  for  payment  of  taxes 
insurance,  etc.,  if  any,  as  in  Form  1568]. 

III.  That  said  mortgage  was  duly  recorded  in  the  office 

of  the  register  of  deeds,  in  and  for  the  county  of   

on  the  day  of ,  19. .,  at  ....  o'clock  .  .M.  in 

Book  ....  of  Mortgages,  on  page  .... 

IV.  That  no  part  of  said  sum  has  been  paid  except 
[state  payments  made]  and  that  there  is  now  due  on  said 

note  and  mortgage  the  sum  of dollars  with  interest 

thereon  from  the  ....  day  of ,  19 . . 

V.  [That  the  defendants,  (mortgagors)  failed  to  keep 
said  premises  insured,  and  in  consequence  thereof  plaintiff 
caused  them  to  be  insured  in  the  M . . .  .  Insurance  Company, 

of for  the  term  of from  the  ....  day  of , 

19. .,  and  paid  therefor  the  premium  of dollars]. 

VI.  [That  the  defendants  (mortgagors)  failed  to  pay  the 
taxes  on  said  premises  for  the  year  19 .  .   amounting  an  all 

to  the  sum  of   dollars  and  in  consequence  thereof 

plaintiff  paid  the  same]. 

VII.  That  no  suit  at  law  or  other  proceedings  has  been 
had  to  recover  the  debt  secured  by  said  note  and  mortgage, 
or  any  part  thereof. 

VIII.  That  the  defendants  [insert  names  of  all  the  de- 
fendants except  those  personally  liable  for  debt]  have,  or 
claim  to  have  some  interest  in  or  lien  upon  said  mortgaged 
premises,  which  interest  or  lien,  if  any,  has  accrued  since 
the  lien  of  said  mortgage,  and  is  subject  thereto.  That  no 
personal  claim  is  made  against  any  defendant  except  [name 
those  personally  liable]. 

WHEREFORE  plaintiff  demands  judgment  adjudging 
the  amount  due  on  said  note  and  mortgage,  with  costs  and 

disbursements,  including   dollars  as  attorney's  fees, 

and dollars  the  amounts  paid  by  plaintiff  for  taxes 

and  insurance  upon  the  said  premises;  and  adjudging  and 
directing  a  sale  of  the  premises  aforesaid,  and  the  payment 


Chapter  LXIV.]  1025  [Forms  1574,  1575. 

from  the  proceeds  thereof  of  the  costs  and  disbursements 
of  this  action,  and  the  amount  due  the  plaintiff  as  aforesaid, 
together  with  interest  to  the  time  of  such  payment;  and 
that  the  defendants,  and  all  persons  claiming  under  them 
may  be  barred  and  foreclosed  of  all  rights,  claims,  liens, 
and  equity  of  redemption  in  said  mortgaged  premises, 
and  every  part  thereof,  except  only  the  right  to  redeem 
the  said  premises  within  one  year  from  the  date  of  the 
order  confirming  said  sale  thereof,  pursuant  to  the  statute 
in  such  case  made  and  provided;  and  that  plaintiff  have 
such  other  and  further  relief  as  to  the  court  shall  seem  just 
and  proper. 

1574.  For  foreclosure  of  mortgage,  general  form  (North 

Dakota  and  South  Dakota). 

[In  North  and  South  Dakota  the  forms  given  in  this  chapter 
for  use  in  Wisconsin  and  Minnesota  may  be  substantially 
followed,  with  the  following  demand  for  Judgment]  : 

WHEREFORE  the  plaintiff  demands  judgment  for  the 
amount  due  on  said  note  and  mortgage,  and  costs  and 
expenses  of  this  action,  together  with  the  further  sum  of 

dollars  attorney's  fees  stipulated  as  aforesaid,  and 

that  the  defendants  and  all  persons  claiming  under  them, 
or  either  of  them,  subsequent  to  the  commencement  of 
this  action,  may  be  barred  and  foreclosed  of  all  right, 
claim,  lien,  and  equity  of  redemption  in  the  said  mortgaged 
premises,  and  every  part  thereof;  that  the  premises  may 
be  decreed  to  be  sold  according  to  law;  that  out  of  the 
moneys  arising  from  the  sale  the  plaintiff  may  be  paid  the 
amount  adjudged  to  be  due  on  said  note  and  mortgage, 
with  interest  at  the  time  of  such  payment,  and  costs  and 
expenses  of  sale,  together  with  the  attorney's  fees  as  afore- 
said, so  far  as  the  amount  of  such  moneys  properly  appli- 
cable will  pay  the  same,  and  that  the  defendant  [promisor] 
may  be  adjudged  to  pay  any  deficiency  which  may  remain 
after  applying  all  of  said  moneys  so  applicable  thereto; 
and  that  the  plaintiff  may  have  such  other  and  further 
relief,  or  both,  in  the  premises  as  shall  be  just  and  equitable. 

1575.  For  foreclosure,  general  form  (Nebraska). 

I.     That  on  the  ....  day  of ,  19. .,  the  said  defend- 

05 


Form  1576.]  1026  [Chapter  LXIV. 

ant  [promisor]  made  and  delivered  to  the  plaintiff  his  promis- 
sory note  in  writing,  of  which  the  following  is  a  copy  [insert 
copy  of  note]. 

II.  That  to  secure  the  payment  of  said  note  the  said 
defendant,  on  said  day,  executed  and  delivered  to  the 
plaintiff  a  mortgage  deed   and  thereby  conveyed  to  the 

plaintiff  the  following  described  real  estate  situate  in 

county  of   ,  viz.   [describe  the  premises],  which  deed 

contained  the  following  conditions  [insert  copy  of  conditions]. 

III.  That  said  mortgage  was  duly  recorded  in  the  office 

of  the  recorder  of  real  estate  mortgages  of county, 

on  the  ....  day  of  ,  19 . .,  in  Book of  Mort- 
gages at  page  .... 

IV.  That  the  plaintiff  is  now  the  legal  owner  and  holder 
of  said  note  and  mortgage,  and  that  no  proceedings  at  law 
have  been  had  for  the  recovery  of  the  debt  secured  thereby, 
or  any  part  thereof,  nor  has  said  debt  or  any  part  thereof 
[except,  etc.]  been  collected  and  paid,  and  there  is  now  due 
from  the  defendant  to  the  plaintiff  upon   said  note   and 

mortgage  the  sum  of dollars,  with  interest  from  the 

....  day  of ,  19.. 

WHEREFORE  plaintiff  demands  judgment  that  an  ac- 
count may  be  taken  of  the  amount  due  on  said  note  and 
mortgage,  that  said  defendants  may  be  foreclosed  of  all 
equity  of  redemption  or  other  interest  in  said  mortgaged 
premises,  and  that  said  premises  may  be  sold  according 
to  law,  and  out  of  the  proceeds  thereof  the  plaintiff  may 
be  paid  the  amount  adjudged  to  be  due  him  on  said  note 
and  mortgage,  wifh  interest  and  costs  of  suit;  that  the 
defendant  [promisor]  be  adjudged  to  pay  any  deficiency 
which  may  remain  after  applying  the  proceeds  of  said 
sale  to  the  payment  of  said  debts,  and  for  such  other  relief 
as  may  be  just  and  equitable. 

1576.  The  same,  where  there  are  junior  incumbrancers, 
and  agreement  to  pay  taxes  which  has  been 
breached  (Nebraska). 

[Proceed  as  in  last  preceding  form,  inserting  before  prayer 
for  judgment] : 

V.  That  it  was  agreed  in  said  mortgage  deed  that  the 
principal  sum  in  said  note  mentioned  should  immediately 


Chapter  LXIV.]  1027  [Form  1576. 

become  due  and  payable  if  said  sum  of  money  or  any  part 
thereof,  or  any  installment  of  interest  thereon  should  not 
be  paid  when  due,  or  if  the  taxes  and  assessments  against 
said  premises  were  not  paid  at  or  before  the  time  the  same 
became  by  law  delinquent,  or  if  said  mortgagor  should 
fail  to  keep  and  perform  all  the  covenants  and  agreements 
on  his  part  to  be  kept  and  performed. 

VI.  That  although  an  installment  of  interest  on  said 

note  became  due  and  payable  on  the  ....  day  of , 

19..,  said  defendant  [mortgagor]  has  not  paid  the  same, 
but  has  failed,  neglected  and  refused  to  pay  the  same  or 
any  part  thereof,  whereby  the  whole  of  said  debt,  to-wit, 

dollars,  and  the  interest  thereon  as  provided  for  in 

said  note  and  mortgage,  became  due  and  still  remains  due 
and  payable  from  said  defendant  [promisor]  to  the  plaintiff. 

VII.  That  the  defendants  [name  junior  incumbrancers] 
have  or  claim  to  have  some  interest  in  or  lien  upon  said 
premises,  which  said  interests  or  liens,  if  any,  are  junior 
and  subject  to  the  lien  of  said  mortgage  of  the  plaintiff, 
but  no  personal  claim  is  made  against  any  of  said  defendants 
except  the  said  [promisor]. 

WHEREFORE  the  plaintiff  demands  judgment  that  an 
account  may  be  taken  by  this  court  of  the  amount  due  the 
plaintiff  on  his  said  note  and  mortgage;  that  the  plaintiff 
be  adjudged  to  have  a  first  hen  on  the  mortgaged  premises 
for  the  amount  so  found  due,  and  that  the  liens  of,  and 
interest  in  the  premises  of  each  and  all  the  defendants,  if 
any  they  have,  be  adjudged  to  be  junior  and  inferior  to 
the  hen  of  the  plaintiff.  That  the  defendant  [the  mort- 
gagor] be  adjudged  to  pay  the  plaintiff  the  sum  so  found 
due;  that  in  default  of  such  payment  the  mortgaged  prem- 
ises may  be  sold  according  to  law,  and  that  each  and  all 
of  the  defendants  in  this  cause  may  be  forever  barred  and 
foreclosed  of  any  and  all  right,  title,  interest  or  equity  of 
redemption  in  and  to  said  premises;  that  out  of  the  proceeds 
of  the  sale  thereof  the  plaintiff  may  be  paid  the  amount 
found  due  him,  together  with  his  costs  herein  expended; 
and  for  such  other  and  further  relief  as  may  be  just  and 
equitable. 


Form  1577.]  1028  [Chapter  LXIV. 

1577.     Petition  in  mortgEige  foreclosure,  general  form 
(Iowa). 

[Title.]     Petition  in  Equity. 
The  plaintiff  alleges: 

I.  That  on  or  about 19 . . ,  the  defendant  C 

D , . . .  executed  and  delivered  to  the  plaintiff  his  certain 
promissory  note  of  which  the  following  is  a  copy  [insert 
copy]. 

II.  That  to  secure  the  payment  of  said  note  the  said 
defendant  C . . . .  D . . . .  together  with  his  wife  the  defendant 
E. .  . .  F. . . .  executed  and  delivered  to  the  plaintiff  their 
certain  mortgage  deed  covering  the  following  described  real 
estate,  to-wit:  [insert  description]  a  copy  of  which  mortgage 
is  hereto  annexed,  marked  exhibit  "A"  and  made  part  of 
this  petition. 

III.  That  said  mortgage  was  duly  filed  for  record  in 

the  office  of  the  recorder  of  deeds  of county,  Iowa, 

on  the   day  of   ,   19..,  at o'clock   ..  M., 

and  duly  recorded  in  Book  ....   page  .... 

IV.  That  said  note  is  still  plaintiff's  property,  is  due 
and  is  wholly  unpaid. 

V.  That  the  defendants  L M and  N 0 

have  or  claim  to  have  some  lien  or  interest  to  said  premises, 
but  the  plaintiff  alleges  that  whatever  hen  or  interest  the 
said  defendants  or  either  of  them,  have  in  the  said  premises 
the  same  is  junior  and  inferior  to  the  lien  of  the  plaintiff's 
said  mortgage. 

VI.  That  since  the  execution  of  said  mortgage,   to-wit: 

On  the   ....  day  of   ,  19.  .,  plaintiff  has  paid  taxes 

on  said  premises,  duly  levied,  amounting  to  the  sum  of 
dollars. 

VII.  That  the  plaintiff  has  been  to  the  expense  of 
dollars  for  an  abstract  of  the  title  to  said  mort- 
gaged premises,  preparatory  to  the  foreclosure  of  said 
mortgage. 

WHEREFORE  the  plaintiff  demands  judgment  against 
the  said  [name  defendants  personally  liable]  for  the  amount 
due  upon  said  promissory  note,  and  for  the  amount  paid 
to  discharge  the  taxes  on  the  mortgaged  premises,  with 
....  per  cent  interest  from  the  time  the  same  were  paid, 
and  for  said  abstract  of  title,  to-wit:    For  the  sum  of 


Chapter  LXIV.]  1029  [Form  1578. 

dollars,   with   interest   and   costs,   including   an   attorney's 

fe2  of dollars,  and  aks  that  said  judgment  be  decreed 

to  be  a  lien  upon  said  mortgaged  premises  from  the  date 

of  said  mortgage,  to-wit:     The   ....   day  of   ,  19.  ., 

and  that  the  lien  of  the  said  defendants,  and  each  of  them 
upon  the  said  mortgaged  premises  may  be  decreed  to  be 
junior  and  inferior  to  the  plaintiff's  mortgage;  that  the 
equity  of  redemption  of  the  said  defendants,  and  each  of 
them,  be  forever  barred  and  foreclosed,  and  that  a  special 
execution  issue  for  the  sale  of  said  mortgaged  premises  or 
so  much  thereof  as  may  be  necessary  to  satisfy  said  judg- 
ment with  interests  and  costs.  And  that  the  court  may 
order  and  decree  that  if  it  becomes  necessary  to  sell  any 
part  of  said  mortgaged  premises  to  satisfy  said  judgment, 
that  a  sufTicient  amount  thereof  be  sold  to  satisfy  not  only 
said  judgment,  but  the  notes  described  in  said  mortgage 
which  are  not  yet  due.  And  that  the  court  adjudge  and 
decree  if  any  part  of  the  said  mortgaged  premises  be  sold 
under  this  decree  and  not  redeemed  within  one  year  from 
the  date  of  the  sale,  that  a  writ  of  possession  shall  issue 
under  the  seal  of  this  court,  directed  to  the  sheriff  of  said 
county,  commanding  him  to  put  the  purchaser  under  this 
foreclosure  in  possession  thereof. 

R....    S.... 
Attorney  for  Plaintiff. 
[Venue]. 

I,  R . . . .  S . . . .  on  oath  depose  and  say  that  I  am  one  of 
the  plaintiff's  attorney's  in  this  suit  and  have  in  my 
possession  for  collection  the  note  and  mortgage  described 
in  the  above  petition,  and  that  the  statements  thereof  are 
true  as  I  verily  believe. 

R....    S.... 
[Jurat] 

1578.    The  same,  another  form  (Iowa). 

[The  forms  given  for  use  in  Nebraska  may  be  substan- 
tially followed,  attaching  a  copy  of  the  mortgage  and  adding 
thereto,  if  the  facts  call  for  it,  the  following :] 

That  the  defendant  [mortgagor]  failed  and  neglected  to 
pay  the  taxes  levied  and  assessed  upon  said  premises  for 
the  year  19. .,  whereby  the  plaintiff  was  compelled  to  and 


Form  1579.]  "  1030  [Chapter  LXIV. 

did,  on  the day  of   ,  19..,  pay  the  said  taxes 

so   levied   amounting  to   the   sum   of    dollars,   and 

that   the   plaintiff   had   necessarily   expended   the   sum   of 

dollars  for   an   abstract   of  title   of   said   premises 

preparatory  to  the  bringing  of  this  action. 

[Prayer  for  judgment  as  follows:] 

WHEREFORE  plaintiff  demands  judgment  against  the 

said  defendant  [promisor]  for  the  sum  of    dollars, 

with  interest  from    ,    19..,   together  with  the   said 

sum  of dollars  paid  to  discharge  tax  liens  as  afore- 
said with  interest  thereon  at   ....  per  cent  from  the  date 

of  payment,  also  for  the  sum  of   dollars  paid  for 

abstract  of  title,  and  for  costs,  including  attorney's  fee  of 

dollars;  that  said  judgment  be  decreed  to  be  a  lien 

upon  said  mortgaged  premises  form  the  ....  day  of 

19. .,  [date  of  mortgage];  that  the  liens  and  interest  of  the 
defendants  and  each  of  them  be  decreed  to  be  junior  and 
subject  to  the  lien  of  the  plaintiff,  and  they  and  each  of 
them  be  forever  barred  and  foreclosed  from  all  title,  claim, 
lien,  interest  or  equity  of  redemption  in  the  said  mortgaged 
premises,  and  that  a  special  execution  issue  for  the  sale  of 
said  premises  or  so  much  thereof  as  shall  be  necessary  to 
satisfy  said  judgment,  with  interest  and  costs;*  and  that  it 
be  forever  adjudged  that  in  case  any  part  of  said  premises 
be  sold  under  said  judgment  and  be  not  redeemed  within 
one  year  from  the  date  of  such  sale,  that  a^writ  of  possession 
issue  out  of  this  court  directed  to  the  sheriff  of  said  county, 
commanding  him  to  put  the  purchaser  under  such  sale  in 
possession  of  said  premises,  and  for  such  further  relief  as 
may  be  equitable. 

1579.    The  same,  amount  not  all  due  (Iowa). 

[Follow  preceding  form,  adding  to  the  prayer  at  the*:]  and 
that  the  court  adjudge  and  decree  that  in  case  it  becomes 
necessary  to  sell  any  part  of  said  premises  to  satisfy  said 
judgment,  that  a  sufTicient  amount  thereof  be  sold  to  satisfy 
not  only  the  said  judgment,  but  the  principal  and  interest 
of  said  note  which  is  yet  to  become  due. 


Chapter  LXIV.]  1031  [Forms  1580,  1581. 

1580.  For  foreclosure  of  title  bond  (Iowa  Ann.  Code 

1897  sec.  4297). 

I.  That  on  the   ....  day  of ,  19. .,  the  plaintiff 

was  the  owner  in  fee  of  the  following  described  real  estate 
[insert  description]. 

II.  That  on  the day  of ,  19. .,  the  plaintiff 

sold  said  real  estate  to  the  defendant  [naming  him]  for  the 

sum   of    dollars   and   that   said   defendant  in   part 

payment  thereof  executed  to  this  plaintiff  his  certain  promis- 
sory note,  of  which  the  following  is  a  copy  [insert  copy  of 
note]. 

II.  That  at  the  time  of  the  execution  of  said  note  this 
plaintiff  executed  and  delivered  to  the  said  defendant  his 
certain  title  bond  to  said  premises,  a  copy  of  which  is  at- 
tached hereto  marked  Exhibit  A,  and  made  a  part  hereof. 

IV.  That  said  bond  was  duly  filed  for  record  in  the 

office  of  the  recorder  of  deeds  of county,  Iowa,  on 

the  ....  day  of ,  19. .,  and  duly  recorded  in  Book 

page  

V.  That  said  note  is  still  owned  and  held  by  the  plaintiff 
and  that  there  is  now  due  and  unpaid  thereon  the  sum  of 
dollars  with  interest  from ,  19 . . 

VI.  That  the  defendants  [naming  them]  have  or  claim  to 
have  some  lien  upon,  or  interest  in,  said  premises,  but  that 
whatever  lien  or  interest  the  said  defendants  or  either 
of  them  may  have  in  said  premises  is  junior  and  inferior 
to  the  lien  of  plaintiff  thereon. 

VII.  [Insert  allegations  as  to  taxes  and  abstract,  as  in 
preceding  forms,  if  the  facts  warrant.] 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
defendant  [promisor]  be  required  to  specifically  perform  his 
said  contract,  or  that  in  case  he  fail  and  neglect  so  to  do 
that  the  plaintiff  have  judgment  against  the  said  [promisor] 
for  the  sum,  etc.  [follow  prayer  for  Judgment  as  in  last  two 
forms]. 

1581.  For  foreclosure  of  chattel  mortgage,  general  form.' 

I.  [Allege  the  indebtedness  and  the  giving  of  a  note  or  other 
evidence  thereof,  as  in  preceding  forms  in  this  chapter.] 

II.  That  to  secure  the  payment  of  said  note  the  defendant 
on  the  ....  day  of ,  19 . .,  executed  and  delivered  to 


Form  1582.]  1032  [Chapter  LXIV. 

the  plaintiff  an  instrument  in  writing  duly  signed  [and 
acknowledged]  by  said  defendant,  by  which  he  conveyed 
to  the  plaintiff  as  security  for  said  note  the  following  de- 
scribed goods  and  chattels,  viz.  [describe  goods  as  in  the 
mortgage,  or  attach  copy  of  mortgage  as  part  of  complaint]. 

III.  That  on  the    ....    day  of    ,   19..,  the  said 

instrument  was  duly  filed  for  record  in  the  office  of  the 
[state  proper  officer]. 

IV.  That  the  defendant  did  not  pay  said  note  when 
the  same  became  due,  nor  has  he  yet  paid  the  same,  or  any 
part  thereof,  and  no  proceedings  have  been  had  at  law  for 
the  recovery  of  said  debt,  and  that  there  is  now  due  from 

the  defendant  to  the  plaintiff  thereon  the  sum  of   

dollars,  with  interest  from ,  19. . 

WHEREFORE  plaintiff  demands  judgment  against  the 

said  defendant  for  the  sum  of dollars,  with  interest 

from  the   day  of   ,  19. .,  with  costs,  and  that 

said  goods  may  be  ordered  sold  as  provided  by  law,  and 
the  proceeds  thereof  applied  in  pa^anent  of  the  amount  so 
adjudged  with  costs;  that  the  defendant  be  barred  and 
foreclosed  of  all  right,  interest,  or  lien  in  or  upon  said  prop- 
erty, and  that  the  plaintiff  have  such  other  and  further 
relief  as  may  be  just. 

1582.    The  same,  where  there  are  subsequent  incum 
brancers. 

[Proceed  as  in  last  preceding  form,  inserting] : 
That  the  defendants  [name  subsequent  incumbrancers  or 
lien-holders]  have  or  claim  to  have  some  interest  in  or  lien 
upon  said  mortgaged  property,   which  they   and  each   of 

'  In  North  Dakota  foreclosure  of  facts  it  becomes  necessary  or  de- 
chattel  mortgages  and  other  liens  sirable  to  ascertain  and  establish 
on  personal  property  is  author-  the  rights  of  all  parties  by  judgment 
ized  by  statute.  N.  Dak.  Rev.  of  a  competent  court.  Bank  v. 
Codes  1905  sec.  7512  et  seq.  In  Damm,  63  Wis.  249;  23  N.  W.  497; 
states  where  there  is  no  Such  express  Forepaugh  v.  Pryor,  30  Minn.  35; 
statutory  provision,  foreclosure  of  14  N.  W.  61;  Packard  v.  Kingman, 
chattel    mortgages    by    action    in  11  Iowa,  219. 

equity  may  generally  be  maintained  Where  there  are  no  such  cir- 
in  cases  where  there  is  no  power  cumstances,  and  the  objection  of 
of  sale  in  the  mortgage,  or  where  adequate  remedy  at  law  is  prop- 
by  reason  of  conflicting  claims  of  erly  taken,  the  right  to  foreclose 
other  lienholders  or  other  extrinsic  in  equity  may  be  doubtful. 


Chapter  LXIV.]  1033  [Forms  1583,  1584. 

them  claim  is  superior  to  the  interest  of  this  plaintiff  therein, 
but  which  are  in  fact  subject  and  inferior  to  the  plaintiff's 
said  mortgage  lien, 

[7/  by  statute  a  right  of  redemption  is  preserved  after  sale 
insert  in  the  prayer  after  the  demand  that  the  defendant  be 
barred  and  foreclosed  of  all  right  in  the  mortgaged  property 
as  follows:  except  the  right  to  redeem  from  the  sale  herein 
adjudged  in  the  manner  provided  by  law.] 

1583.  For  foreclosure  of  a  bill  of  sale  of  chattels  given 

as  a  chattel  mortgage  (adapted  from  First  Nat. 
Bank  v.  Damm,  63  Wis.  249;  23  N.  W.  497). 

I.  [Allege  indebtedness  as  in  previous  forms  in  this  chapter.] 

II.  That  to  secure  payment  of  said  indebtedness  the 

defendant   [promisor]   on   the    ....    day   of    ,    19.., 

executed  and  delivered  to  the  plaintiff  a  bill  of  sale  of  the 
following  described  personal  property  [describe  same]  a 
copy  of  which  bill  of  sale  is  attached  hereto  and  marked 
Exhibit  A,  and  that  it  was  then  and  there  understood  and 
agreed  by  the  parties  thereto  that  the  same  was  given  and 
was  to  operate  only  as  a  chattel  mortgage  of  the  property 
therein  described  to  secure  the  payment  of  said  indebted- 
ness, and  that  if  said  defendant  should  pay  the  said  in- 
debtedness at  the  time  and  in  the  manner  agreed  upon  in 
said  note  then  the  said  bill  of  sale  should  be  null  and  void. 

III.  That  the  said  bill  of  sale  was  duly  filed  for  record 
as  a  chattel  mortgage  in  the  [proper  office]  on  the  ....  day  of 
,  19.. 

[Allege  default,  and  claims  of  other  defendants  as  in  the  last 
two  preceding  forms.] 

[Insert  in  demand  for  judgment:]  That  the  said  bill  of  sale 
be  adjudged  to  be  a  chattel  mortgage  upon  said  property, 
and  that  the  plaintiff  recover  judgment  against  the  said 
[promisor]  for  the  sum  of,  etc.  [proceed  as  in  last  two  preceding 
forms]. 

1584.  For  foreclosure  of  pledge  (Iowa  Ann.  Code  1897 

sec.  4286). 

I.  [State  indebtedness  as  in  previous  forms  in  this  chapter.] 

II.  That  to  secure  payment  of  the  said  indebtedness, 
and  as  collateral  security  therefor,  the  defendant  [pledgor] 


Form  1585.]  1034  [Chapter  LXIV. 

on  the    day  of   ,   19..,  pledged  and  delivered 

to  this  plaintiff  the  following  described  personal  property 
[insert  description]  upon  the  understanding  and  agreement 
then  and  there  made  between  the  said  parties  that  in  case 
the  said  defendant  [pledgor]  should  well  and' truly  pay  the 
plaintiff  the  indebtedness  aforesaid,  with  interest  as  agreed, 
then  the  said  pledged  property  should  be  returned  to  tlie 
said  defendant  and  the  claim  of  the  plaintifT  thereon  should 
be  released,  otherwise  that  the  said  pledge  should  remain 
in  full  force  and  effect  [state  any  special  agreement  made 
by  the  parties]. 

III.  [State  default,  etc.,  substantially  as  in  the  previous 
forms  given  for  foreclosure  of  chattel  mortgages.] 

[Demand  for  judgment  substantially  as  in  chattel  mortgage 
foreclosure.] 


1585.    Complaint  for  strict  foreclosure  of  land  contract. 

I.  That  on  the   ....  day  of ,  19..,  the  plaintifT 

being  the  owner  of  the  premises  hereinafter  described, 
entered  into  a  written  contract  to  sell  and  convey  the 
same  to  the  defendant  C .  .  .  .  D .  .  . .  upon  the  terms  and 
conditions  in  said  contract  set  forth,  a  copy  of  which  con- 
tract is  attached  hereto  made  part  of  this  complaint  and 
marked  Exhibit  A. 

II.  That  although  the  sum  of dollars  became  due 

to  the  plaintifT  on  said  contract  on  the  ....  day  of , 

19. .,  as  principal  and  interest,  yet  the  same  has  not  been 
paid,  and  said  defendant  has  neglected  and  refused  to  pay 
the  same,  or  any  part  thereof,  except,  [if  any  payments 
have  been  made  state  them]. 

III.  That  the  plaintifT  now  is  and  at  all  times  has  been 
ready  and  willing  to  perform  said  contract  on  his  part. 

IV.  That  said  premises  are  described  as  follows  [insert 
description]. 

V.  That  the  defendant  is  now  and  has  been  since  the 
date  of  said  contract  in  possession  of  said  premises  and 
the  enjoyment  of  the  use,  rents  and  profits  thereof,  and 
refuses  to  surrender  up  said  contract  to  be  canceled  and 
refuses  to  deliver  up  the  said  premises  to  the  plaintifT. 

VI.  That  no  proceedings,  except  this  action,  have  been 


Chapter  LXIV.]  1035  [Form  1586. 

commenced  at  law  or  otherwise  for  the  collection  of  the  sums 
due  on  said  contract  or  any  part  thereof. 

VII.  That  the  defendants  [name  any  other  defendants, 
including  the  wife  of  the  defendant  who  may  have  any  interest 
in  the  premises  which  may  be  barred  by  the  strict  foreclosure], 
have  or  claim  to  have  some  lien,  interest  or  claim,  in,  to 
or  upon  said  premises,  which  lien,  interest  or  claim,  if  any 
they  or  any  of  them  have,  is  derived  from  said  defendant 

C D. . . .,  and  is  subordinate  and  subject  to  the  rights 

of  the  plaintiff. 

WHEREFORE  the  plaintiff  demands  judgment  against 
the  defendants:  (1)  That  the  defendant  C...  D...., 
purchaser  as  aforesaid,  pay  or  cause  to  be  paid  to  the  plaintiff, 
or  bring  into  court  to  be  so  paid  the  amount  actually  due 
upon  the  contract  aforesaid  as  principal  and  interest  thereon 
by  a  day  certain  to  be  named  by  the  court  within  such  short, 
reasonable  time  as  to  the  court  shall  seem  proper,  together 
with  the  costs  of  this  action;  (2)  That  in  default  of  such 
payment,  so  to  be  required  by  the  court,  the  said  defendants 
[name  them]  and  all  persons  claiming  under  them  or  any 
or  either  of  them  subsequent  to  the  filing  of  the  notice  of 
the  pendency  of  this  action,  be  forever  barred  and  fore- 
closed of  all  right,  title,  interest,  claim  and  equity  of  redemp- 
tion in  and  to  said  lands  and  premises,  or  any  part,  parcel 
or  portion  thereof;  (3)  That  the  plaintiff  have  and  recover 
the  costs  and  disbursements  of  this  action  of  said  defendant 
C . . . .  D . . . .  and  that  he  have  such  further  relief  as  may 
be  just  and  equitable. 

1586.    Complaint  to  enforce  forfeiture  of  land  contract 
(Minnesota). 
I,  II,  III,  IV,  V  and  VI.    [As  in  last  preceding  form.] 

VII.     That  on   ,  19..,  plaintiff  duly  served  upon 

defendant  a  notice  terminating  said  contract,  as  provided 
by  section  8081  of  the  General  Statutes  of  Minnesota  for 
1913,  of  which  notice  the  following  is  a  copy  [insert  copy]. 

WHEREFORE  plaintiff  demands  judgment  adj-udging 
the  amount  due  plaintiff  from  defendant  under  said  contract, 
and  fixing  a  day  at  or  before  which  defendant  shall  pay 
the  same,  and  in  default  of  such  payment  that  said  con- 
tract be  forfeited  and  plaintiff  have  restitution  of  said 
premises,  and  for  such  other  relief  as  may  be  just,  with  costs. 


Form  1587.]  1036  [Chapter  LXIV. 

1587.  To  revive  mortgage  and  for  subrogation  in  favor 
of  one  who  has  paid  it  expecting  to  receive  a 
new  one. 

I.  [Allege  the  title  of  the  real  estate  showing  it  to  be  in  the 
principal  defendant  and  set  forth  the  execution  of  the  mort- 
gage and  its  terms  in  legal  effect,  or  give  copy] 

II.  That,  thereafter,  and  after  the  said  mortgage  became 

due,  and  on  or  about  the  ....  day  of ,  19. .,  at  the 

urgent  sohcitation  of  said  defendants,  [name  mortgagors] 
and  upon  and  in  consideration  of  their  promise,  which 
they  then  and  there  made  to  execute  to  the  plaintiff  a  mort- 
gage on  said  premises  for  said  sum,  with  interest  at  ....  per 
cent  per  annum,  payable  in  ....  years,  the  plaintiff,  loaned 

said  defendant,  [mortgagor]  the  sum  of   dollars,  for 

the  purpose  of  satisfying  and  with  which  he  satisfied  said 
mortgage,  and  satisfaction  thereof  was  duly  recorded  in  the 
said  registry  on  the  ....  day  of ,  19.  . 

III.  That  although  requested  so  to  do  before  the  com- 
mencement of  this  action,  the  said  defendants  have  refused 
and  still  refuse  to  execute  said  mortgage  to  the  plaintifT. 

IV.  That  thereafter,  to-wit,  on  the day  of , 

said  [name  mortgagors]  for  the  purpose  of  defrauding  the 
plaintifT  and  preventing  him  from  having  security  upon 
said  premises,  conveyed  the  same  to  the  defendant,  C . . . . 
D . . . .  who  at  the  time  of  taking  said  conveyance  well 
knew  of  the  said  loan  and  promise  by  the  said  [mortgagors] 
to  secure  the  same  by  mortgage  on  said  premises,  and  that 
the  same  had  not  been  paid,  and  of  the  fraudulent  intent 
and  purpose  of  said  [mortgagors]  in  conveying  the  same  to 
him. 

V.  That  said  [mortgagor]  has  no  other  property  than 
said  land  out  of  which  said  claim  can  be  collected. 

WHEREFORE  the  plaintiff  demands  judgment:  (1) 
That  said  first-mentioned  mortgage  be  revived  as  to  the 
parties  hereto,  to  the  amount  of  said  debt  to  the  plaintifT, 
and  interest,  and  that  the  plaintifT  be  subrogated  to  the 
rights  of  the  mortgagee  therein;  (2)  That  the  satisfaction 
of  the  same  heretofore  made  be  canceled  of  record  and  the 
plaintiff's  said  claim  be  declared  a  mortgage  lien  upon  said 
land;  (3)  That  the  said  conveyance  to  C .  .  .  .  D . .  .  .,  above 
mentioned,  be  adjudged  to  be  subordinate  and  subject  to 


Chapter  LXIV.]  1037  [Form  1588. 

the   equities  of  the   plaintiff  herein.     [Add  prayer  for  the 
usual  relief  in  case  of  mortgage  foreclosure.] 

1588.  Outline  of  complaint  by  trustee  to  foreclose  mort- 
gage or  deed  of  trust  from  corporation,  for  the 
benefit  of  bond  holders. 

I.  [Allege  corporate  character  of  defendant  as  in  Form  848.] 

II.  [Allege  execution  of  the  bonds  and  coupons  in  suit 
describing  them  by  stating  their  legal  effect  or  by  ottarhinn  a 
copy  and  allege  the  negotiation  and  sale  thereof  and  that  they 
are  held  by  divers  persons  unknown  to  the  plaintiff.] 

III.  [Allege  the  execution  of  the  mortgage  or  trust  deed  to 
secure  the  bonds,  giving  copy  or  pleading  legal  effect  and  de- 
scription of  property  covered.] 

IV.  [Allege  acceptance  of  trust  by  plaintiff  and  recording 
of  the  mortgage  in  proper  office.] 

V.  [Set  forth  the  default  or  defaults  in  the  covenant  of  the 
bonds  or  mortgage.] 

VI.  [Allege  demand  upon  plaintiff  by  bond  holders  to 
bring  the  action  showing  that  the  required  number  of  bond 
holders  have  joined  in  the  demand.] 

VI.  [Allege  the  amounts  due,  and  that  no  proceedings 
have  been  had  for  the  recovery  thereof.] 

VII.  That  the  defendants  [naming  them]  have,  or  claim 
to  have,  some  interest  in,  or  lien  upon,  the  aforesaid  mort- 
gaged property,  or  some  portion  thereof,  which  interest 
or  lien,  if  any,  has  accrued  subsequently  to  the  lien  of  the 
said  mortgage  and  trust  deed. 

WHEREFORE  plaintiff  demands  judgment:  (1st)  That 
the  defendants,  and  all  persons  claiming  under  them,  or 
either  of  them,  subsequent  to  the  filing  of  a  notice  of  the 
pendency  of  this  action,  may  be  barred  and  foreclosed  of  all 
right,  claim,  lien  and  equity  of  redemption  in  the  said 
mortgaged  property;  (2d)  That  the  said  mortgaged  prop- 
erty may  be  decreed  to  be  sold,  according  to  law;  (3d)  That 
out  of  the  proceeds  of  such  sale,  the  plaintiff  be  paid  the 
costs  and  expenses  of  this  action;  that  it  be  ascertained  who 
are  the  owners  and  holders  of  the  said  bonds,  and  that  to 
such  persons  shall  be  paid  the  amounts  due  upon  their 
respective  bonds,  with  interest  to  the  time  of  such  payment ; 
that  in  case  of  deficiency,  the  moneys  properly  applicable 


Form  1588.]  1038  [Chapter  LXIV. 

thereto  shall  be  paid  to  them  pro  rata;  that  the  defendant, 
the  [name  corporation]  may  be  adjudged  to  pay  any  defi- 
ciency which  may  remain  after  the  application  of  all  of 
said  moneys  so  applicable  thereto,  and  that  the  plaintiff 
have  such  other  relief  as  may  be  just  and  equitable. 


CHAPTER  LXV. 

COMPLAINTS  IN  ACTIONS  TO  REDEEM 
MORTGAGED  PREMISES. 


1589.  By  mortgagor  against  mort- 

gagee. 

1590.  The  same,  where  mortgagee 

is  in  possession. 

1591.  By  junior  mortgagee  against 

purchaser      under      fore- 
closure of  a  senior  mort- 


gage, plaintiff  not  being  a 
party  to  the  former  action. 

1592.  By  a  grantor  to  have  a  deed 

declared  a  mortgage,  and 
to  redeem  therefrom. 

1593.  By  lessee  of  mortgagor. 


This  is  an  equitable  action  and  may  be  maintained  by  the 
mortgagor  or  by  any  one  having  a  definite  interest  in  the 
mortgaged  premises,  and  who  has  no  adequate  remedy  at 
law.  Thus,  assignees  or  grantees  of  the  equity  of  redemp- 
tion, heirs,  devisees,  and  personal  representatives  of  the 
mortgagor,  junior  incumbrancers  or  judgment  creditors 
may  maintain  the  action. 

It  is  not  necessary  to  the  right  that  a  tender  be  made 
before  action,  or  that  the  money  be  deposited  in  court, 
though  these  allegations  are  frequently  made  and  may  affect 
the  question  of  costs;  it  is  sufficient,  however,  so  far  as  the 
right  to  maintain  the  action  is  concerned,  that  the  complaint 
allege  a  readiness  to  pay  whatever  is  due. 


1589.    By  mortgagor  against  mortgagee. 

I.  That  on  the  ....  day  of ,  19 .  . ,  the  plaintiff  exe- 
cuted to  the  defendant  a  bond  under  his  hand  and  seal,  dated 
that  day,  conditioned  to  pay,  etc.  [state  condition  of  bond,  or  if 
note  was  given  describe  the  same]  and,  being  owner  in  fee  [or 
otherwise]  of  the  premises  hereinafter  described,  executed  to 
the  defendant  a  mortgage  of  even  date  herewith,  to  secure 
the  payment  thereof,  whereby  the  plaintiff  granted,  bar- 
gained, and  sold  to  the  defendant  the  said  premises,  upon 
the  condition  nevertheless  that  [state  condition  of  the  mortgage] 
which  said  premises  are  described  as  follows:  [insert  des- 
cription from  mortgage]. 


Form  1590.]  1040  [Chapter  LXV. 

XL     That  the  plaintiff  has  paid  to  the  defendant  all  the  n 

terest  due  on  said   dollars  from  the   . .  .\  day  of 

,  19 . . ,  up  to  the day  of ,  19 . . ;  and  that 

on  the  ....  day  of ,  19.  .,  when  [or,  and  after]  the 

said  mortgage  became  due,  he  tendered  to  the  defendant 

the  sum  of dollars,  together  with  all  the  interest 

[and  costs]  due  thereon,  and  ever  since  has  been  ready  and 
willing  to  pay  the  same,  and  herewith  brings  the  same  into 
court  for  the  use  of  the  defendant,  but  the  defendant  has  at 
all  times  refused  to  receive  the  same,  or  to  deliver  up  said 
mortgage  to  be  cancelled. 

WHEREFORE  the  plaintiff  demands  judgment  that  an 
account  be  taken  of  the  amount  now  due  the  defendant  on 
said  bond  and  mortgage  for  principal,  interest  [and  costs]; 
and  that  the  plaintiff  may  be  at  liberty  to  redeem  said 
mortgaged  premises  upon  payment  of  whatever  may  be 
found  so  due;  and  that  the  defendant,  upon  payment  there- 
of, acknowledge  satisfaction  of  said  mortgage,  and  discharge 
the  same  of  record,  and  that  the  plaintiff  have  such  further 
relief  as  may  be  equitable. 

1590.    The  same,  where  mortgagee  is  in  possession. 

I.  [As  in  last  preceding  form.] 

II.  That  the  plaintiff  has  paid  to  the  defendant  the 
interest  accruing  on  said  bond  [or  note]  and  mortgage  up  to 

and  including  the day  of ,  19 .  .,  to-wit  the  sum 

of  [here  state  payments,  and  when  made]  and  on  the  ....  day 

of ,  19.  .,  duly  tendered  to  the  defendant  the  further 

sum  of dollars  which  said  defendant  refused  and 

still  refuses  to  receive. 

III.  That  on  or  about  the day  of ,  19.  .,  the 

defendant  entered  into  possession  of  said  premises,  and  has 
ever  since  retained  possession  thereof,  and  received  the  rents 

and  profits  of  the  same,  amounting  to  the  sum  of 

dollars  [or,  amounting  to  a  sum  greater  than  the  amount  due 
on  said  mortgage]  which  sum  he  has  applied  to  his  own  use. 

IV.  That  on  the day  of ,  19 .  .,  the  plaintiff 

applied  to  the  defendant  to  account  for  said  rents  and  profits, 
and  to  pay  the  plaintiff  the  amount  of  the  excess  thereof 
over  and  above  said  mortgage  debt,  and  to  deliver  possession 
of  said  premises  to  the  plaintiff  and  discharge  said  mortgage 
which  defendant  then  refused  and  still  refuses  to  do. 


Chapter  LXV.]  1041  [Form  1591. 

WHEREFORE  the  plaintiff  demands  judgment  that  an 
account  be  taken  of  the  amount  due  on  said  note  [or  bond] 
and  mortgage,  and  also  of  the  rents  and  profits  of  said 
premises  so  received  by  the  defendant,  and  that  plaintiff  be 
permitted  to  redeem  the  said  premises  upon  payment  of  the 
amount,  if  any,  which  may  be  found  due  the  said  defendant, 
and  that  defendant  be  required  to  discharge  and  cancel  said 
mortgage  of  record,  and  deliver  the  possession  of  said  prem- 
ises to  the  plaintiff,  and  for  such  further  relief  as  may  be 
equitable. 

1591.  By  junior  mortgagee  against  purchaser  under 
foreclosure  of  a  senior  mortgage,  plaintiff  not 
being  a  party  to  the  former  action. 

I.  That  on  the   ....  day  of   ,  19..,  one  E.... 

F . . . .  executed  and  delivered  to  one  G . . . .  H . . . .  a  mort- 
gage upon  the  following  described  real  estate  [insert  descrip- 
tion] to  secure  payment  of  the  sum  of dollars  and 

interest,  due  in  ....  years  from  that  date,  according  to  the 
conditions  of  a  certain  promissory  note  of  even  date  with 
said  mortgage. 

II.  That  on  the  ....  day  of ,  19 . .,  a  judgment  of 

foreclosure  and  sale  was  duly  rendered  on  said  mortgage  in 

the court  of county  in  a  certain  action  then 

and  there  pending  and  said  premises  were  thereafter  duly 
sold  under  said  judgment  to  the  defendant  for  the  sum  of 

dollars,  which  sale  was  thereafter  duly  confirmed 

by  said  court,  and  a  deed  duly  executed  and  delivered  to  the 
defendant,  who  ever  since  has  been  and  is  now  in  possession 
of  said  premises. 

III.  That  on  the day  of 19. .,  said  E. . . . 

F . . . .  executed  and  delivered  to  the  plaintiff  his  promissory 
note  in  writing,  in  the  words  and  figures  following  [set  forth 
copy  of  note,  or  plead  legal  effect]. 

IV.  That  to  secure  the  payment  of  said  note  said  E . . . . 
F ....  on  said  day  executed  and  delivered  to  plaintiff  a  mort- 
gage and  thereby  granted,  bargained  and  sold  to  plaintiff  the 
above  described  premises,  upon  condition  nevertheless  that 
[here  state  condition]. 

V.  That  said  mortgage  was  duly  recorded  in  the  ofTice  of 
the   ....   of  deeds,  of county  on  the   ....   day  of 

,  19.. 

66 


Form  1592.]  1042  [Chapter  LXV. 

VI.  That  said  E....  F....  has  not  paid  the  amount 
secured  by  said  last  named  mortgage,  as  required  by  the 
conditions  thereof,  and  that  no  proceedings  have  been  had 
at  law  or  in  equity  for  the  recovery  of  the  debt  secured 
thereby,  nor  has  any  part  thereof  been  collected  and  paid, 
and  there  is  now  due  thereon  the  sum  of dollars. 

VII.  That  in  the  said  action  to  foreclose  the  mortgage 
under  which  the  defendant  claims  title  to  said  premises,  the 
plaintiff  was  not  made  a  party,  nor  did  he  appear  in  the 
action,  nor  does  the  judgment  in  that  action  affect  his  right 
in  the  premises. 

VIII.  That  on  or  about  the  ....  day  of ,  19. .,  the 

plaintiff  duly  tendered  to  defendant  the  amount  due  on  his 
said  foreclosure  judgment,  with  interest  to  that  date,  and 
demanded  that  defendant  release  and  convey  said  premises 
to  the  plaintiff  and  that  defendant  refused  so  to  do. 

WHEREFORE  the  plaintiff  demands  judgment  that  he  be 
allowed  to  redeem  said  premises  upon  paying  to  the  defend- 
ant the  amount  of  defendant's  said  judgment,  with  interest 
within  a  reasonable  time  to  be  fixed  by  the  court,  and  that 
upon  such  payment  the  defendant  be  required  to  release 
and  convey  to  the  plaintiff  all  his  right,  title  and  interest  in 
said  premises  acquired  under  said  judgment,  and  under  said 
sale,  and  that  the  defendant  surrender  possession  of  said 
premises  to  the  plaintiff  and  for  such  further  relief  as  may  be 
equitable. 

1592.    By  a  grantor  to  have  a  deed  declared  a  mortgage, 
and  to  redeem  therefrom. 

I.  That  on  the  ....  day  of ,  19. .,  the  plaintiff 

was  the  owner  and  in  possession  of  the  following  described 
premises  [insert  description]  of  the  value  of dollars. 

II.  That  on  said  day  the  plaintiff,  being  in  embarrassed 
circumstances,    borrowed    of    the    defendant    the    sum    of 

dollars  for  ....  years,  with  interest  at  ....  per 

cent,  [if  note  was  given,  set  forth  the  fact]. 

III.  Thrt  to  secure  the  payment  of  said  loan  the  plaintiff 
executed  and  delivered  to  defendant  a  warranty  deed  in  fee 
simple  of  said  premises,  which  deed  though  absolute  in  form, 
was  intended  by  both  plaintiff  and  defendant  to  be  a  mort- 
gage only,  and  to  stand  as  security  for  the  repayment  of  said 
loan,  and  to  serve  no  other  purpose. 


Chapter  LXV.]  1043  [Form  1593. 

IV.  That  on  the  ....  day  of ,  19 . . ,  said  defendant 

entered  into  possession  of  said  premises,  under  said  deed,  and 
has  received  the  rents  and  profits  thereof  and  applied  the 
same  to  his  own  use,  which  said  rents  and  profits  amount  to 
the  sum  of dollars. 

V.  That  on  or  about  the  ....  day  of ,  19 . .,  the 

plaintiff  offered  to  pay  said  defendant  the  amount  of  said 
loan,  over  and  above  the  rents  and  profits  so  received  by 
him,  and  requested  him  to  account  for  the  rents  and  profits 
of  said  premises,  and  to  deliver  up  possession  of  the  same 
upon  being  paid  whatever  sum  should  be  found  to  be  justly 
due  him  upon  said  account,  but  said  defendant  then  refused, 
and  still  refuses,  to  account  with  the  plaintiff,  but  insists 
upon  retaining  possession  of  said  estate. 

VI.  That  the  plaintiff  is  ready  to  pay  whatever  may  be 
justly  due  on  said  loan,  and  hereby  offers  to  bring  the  money 
into  court  for  that  purpose. 

WHEREFORE  plaintifT  demands  judgment  that  an 
account  may  be  taken  of  the  amount  due  said  defendant, 
after  deducting  the  rents  and  profits  received,  and  that  upon 
the  payment  by  plaintifT  of  the  amount  so  found  due,  said 
defendant  be  required  to  reconvey  said  premises  to  the 
plaintiff,  and  for  such  other  relief  as  may  be  equitable. 

1593.    By  lessee  of  mortgagor. 

I.  That  on  the  ....  day  of ,  19 . .,  the  defendant 

[mortgagor]  was  the  owner  in  fee  of  the  following  described 
premises,  and  leased  the  same  to  the  plaintiff  by  an  indenture 
dated  on  that  day,  a  copy  of  which  is  annexed  as  a  part  of 
this  complaint;  and  that  by  virtue  of  said  lease  the  plaintiff 
entered  upon,  and  ever  since  has  been  and  still  is,  in  posses- 
sion of  said  premises,  and  is  vested  with  the  unexpired  term 
thereof;  which  premises  are  [bounded  and]  described  as 
follows  [description]. 

II.  That  on  the  ....  day  of ,  19 . .,  said  [mortgagor] 

made  to  the  defendant  [mortgagee]  a  mortgage  upon  the  same 

premises,  to  secure   dollars,  payable  on  the 

day  of ,19.. 

III.  That  on  the  said  day  the  mortgage  became  due,  but 
has  not  been  paid ;  and  that  said  [mortgagee]  has  commenced 
an  action  [or,  proceedings  under  the  statute]  to  foreclose  the 
same  for  such  default. 


Form  1593.]  1044  [Chapter  LXV. 

IV.     That  on  the day  of 19 .  . ,  the  plaintiff 

tendered    dollars   to   said    [mortgagee]   being   the 

amount  due  on  said  mortgage,  with  interest,  and  the  cost  of 
said  action  [or,  proceeding]  up  to  that  time,  in  redemption 
of  said  mortgage,  and  has  ever  since  been  ready  and  willing 
to  pay  the  same;  and  did  then  request  him  to  assign  the 
same  to  the  plaintiff,  but  he  refused  so  to  do. 

WHEREFORE  the  plaintiff  demands  judgment  that  he  be 
allowed  to  redeem  the  said  mortgage  upon  paying  to  the  de- 
fendant [mortgagee]  the  amount  due  upon  the  mortgage;  and 
that  upon  such  payment  the  defendant,  by  an  assignment 
duly  executed  and  acknowledged  by  him,  assign  said  bond 
and  mortgage  to  the  plaintiff;  and  that  the  plaintiff  have 
such  further  relief  as  may  be  equitable. 


CHAPTER  LXVI. 

COMPLAINTS  FOR  SPECIFIC   PERFORMANCE   OF 
CONTRACTS. 


1594. 
1595. 


1596. 


1597. 


1598. 


1599. 


1600. 


1601. 


Vendor  against  purchaser. 

The  same,  when  time  has 
been  extended  by  agree- 
ment. 

Purchaser  against  vendor, 
claiming  interest  on  pur- 
chase money  which  has 
lain  idle,  and  deduction  for 
deficiency  and  for  out- 
standing incumbrance. 

Upon  an  exchange  of  prop- 
erty, possession  having 
been  taken. 

By  vendee  against  vendor  to 
enforce  oral  contract  of 
sale  when  contract  has 
been  so  far  performed  as  to 
take  the  case  out  of  the 
statute  of  frauds. 

By  creditor,  for  performance 
of  agreement  to  give  a 
chattel  mortgage. 

By  lessee  for  specific  per- 
formance of  an  agreement 
to  lease  real  estate. 

For  specific  performance  of 
an  agreement  to  execute 
a  chattel  mortgage  on  per- 
sonal property,  and  to  set 
aside  fraudulent  disposi- 
tion of  the  property. 


1602.  To  enforce  specific  perform- 

ance of  an  agreement  by  a 
railroad  to  construct  a 
farm  crossing. 

1603.  Outline     of     complaint     for 

reformation  of  contract 
and  specific  performance 
thereof  as  reformed. 

1604.  On    an    exchange    of   lands, 

both  parties  having  taken 
possession. 

1605.  To  enforce  performance  of  a 

contract  to  transfer  cor- 
porate stock. 

1606.  Outline     of     complaint     by 

adopted  child  to  compel 
performance  of  agreement 
to  give  him  a  specified 
share  of  estate. 

1607.  To  enforce  specific  perform- 

ance of  contract  in  relation 
to  mines,  compel  convey- 
ance of  claims,  and  accoun- 
ting. 

1608.  To    enforce    a    contract    for 

sale  on  joint  account  of 
mining  claims  to  a  corpo- 
ration, to  declare  a  trust 
in  the  corporate  stock  re- 
ceived by  defendant  there- 
for, and  for  damages. 


The  action  for  specific  performance  is  purely  equitable,  and 
while  controlled  by  settled  legal  principles  a  decree  is  never 
demandable  as  a  matter  of  abstract  right,  but  is  within  the 
sound  discretion  of  the  court  under  established  principles  of 
equity.  It  will  never  be  granted  if  there  is  an  adequate 
remedy  at  law;  the  plaintiff  must  always  be  ready  to  do 
equity,  and  the  court  may  impose  equitable  terms  upon  the 


Form  1594.]  1046  [Chapter  LXVI. 

plaintiff.  A  contract  may  be  reformed  and  specifically  en- 
forced in  the  same  action,  but  the  court  will  ordinarily 
refuse  its  aid  where  the  contract  lacks  certainty  as  to  its 
essential  terms  or  w^here  any  of  such  terms  depend  on  the  will, 
discretion  or  personal  acts  of  individuals  which  cannot  be 
controlled  by  the  court.  Park  v.  Ry.  Co.,  114  Wis.  347. 
Nor  will  a  court  decree  specific  performance  when  the  con- 
tract is  not  fair,  just  and  reasonable  in  all  its  parts.  Mulli- 
gan V.  Albertz,  103  Wis.  140.  If  the  action  be  for  specific 
performance  of  a  contract  for  sale  of  lands,  it  is  not  necessary 
to  allege  in  the  complaint  that  the  plaintiff  has  no  adequate 
remedy  at  law,  such  contracts  being  enforced  as  a  matter  of 
course;  but  if  the  contract  be  for  sale  of  personalty  the 
peculiar  facts  which  take  the  case  out  of  the  general  rule  that 
money  damages  are  an  adequate  remedy  for  the  breach 
must  be  stated.     20  Enc.  PI.  &  Pr.,  p.  438,  notes. 


1594.    Vendor  against  purchaser. 

I.  That  on  and  before  the  ....  day  of ,  19. .,  the 

plaintiff  was  and  still  is  the  owner  in  fee  [or  otherwise]  and 
possessed  of  certain  real  property  hereinafter  described. 

II.  That  the  defendant,  being  desirous  to  purchase  the 
same,  entered  into  an  agreement  in  writing  with  the  plaintiff, 
dated  on  that  day,  of  which  the  following  is  a  copy  [copy  of 
contract,  giving  a  description  of  the  property,  of  which  a  copy  is 
attached  hereto  and  made  a  part  of  this  complaint,  marked 
Exhibit  A;  or  set  forth  the  legal  effect  of  the  contract]. 

III.  That    the    defendant    then    paid    to    the    plaintiff 

dollars  as  part  of  the  purchase  money  mentioned  in 

said  contract. 

IV.  That  the  plaintiff  has  always  been,  and  still  is,  ready 
and  willing  to  perform  the  said  agreement  on  his  part;  and,  on 
being  paid  the  remainder  of  said  purchase  money  [with 
interest]  to  convey,  etc.  [as  by  the  agreement]  and  to  let  the 
defendant  into  possession  of  said  premises,  and  the  rents  and 
profits  thereof,  from  the  time  in  the  agreement  specified. 

V.  That  on  the day  of ,  19. .,  at the 

plaintiff  duly  tendered  to  the  defendant  a  deed  of  the  said 
premises  pursuant  to  the  agreement;  but  the  defendant  then 
and  ever  since  has  refused  to  accept  the  same  and  to  pay  the 


Chapter  LXVI.]  1047  [Forms  1595,  1596. 

balance  of  the  purchase  money  [or,  and  to  give  the  bond  and 
mortgage  agreed  for,  or  otherwise,  according  to  the  contract], 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
defendant  perform  said  agreement,  and  pay  to  the  plaintiff 

dollars,  the  remainder  of  said  purchase-money,  with 

interest  from  the  ....  day  of ,  19 . . ,  the  time  when  it 

ought  to  have  been  paid  [or,  and  give  to  the  plaintiff  the  bond 
and  mortgage]  and  that  the  plaintiff  have  such  other  or 
further  relief  as  may  be  equitable,  and  that  he  recover  the 
costs  of  this  action. 

1595.  The  same,  when  time  has  been  extended  by  agree- 

ment. 

[Insert  in  the  foregoing  form,  between  allegations  IV  and  V 
the  following  allegation] : 

That  thereafter  and  on  or  about  the day  of , 

19. .,  the  plaintiff  and  defendant  entered  into  an  additional 
written  agreement,  by  the  terms  of  which  the  time  of  per- 
formance of  said  first  described  contract,  and  the  payment  of 
the  money  therein  mentioned  [or,  of  the  delivery  of  the  bond 
and  mortgage  aforesaid]  was  duly  extended  to  the  ....  day  of 
,  19 . . ,  at at  the  hour  of o'clock  a.  m. 

1596.  Purchaser  against  vendor,  claiming  interest  on 

purchase  money  which  has  lain  idle,  and  deduc- 
tion for  deficiency  and  for  outstanding  incum- 
brance. 

I.     That  on  the  ....  day  of ,  19 . .,  the  defendant, 

being  owner  in  fee  [or  otherwise]  and  possessed  of  certain  real 
property  herinafter  described,  and  desirous  to  dispose  of  the 

same,  made  [by  one  IVI N  ....  his  agent,  duly  authorized 

thereto]  an  agreement  in  writing  with  the  plaintiff,  of  which  a 
copy  is  attached  hereto,  made  a  part  of  this  complaint,  and 
marked  Exhibit  A  [or  set  forth  agreement  made  according  to  its 
legal  effect]. 

[II.  That  on  the  execution  thereof  the  plaintiff  paid  to  the 
defendant dollars  as  a  part  payment  of  the  pur- 
chase money  therein  mentioned.] 

[III.  That  afterwards,  by  mutual  agreement  between  the 
plaintiff  and  the  defendant,  the  time  for  completing  said  con- 
tract was  extended  to  the  ....  day  of ,  19 . .] 


Form  1596.]  1048  [Chapter  LXVI. 

IV.  That  the  plaintiff  duly  performed  all  of  the  conditions 
thereof  on  his  part,  and  has  always  been  ready  and  willing, 
and  still  is,  to  fulfill  the  agreement  on  his  part;  and,  on 
having  a  good  and  marketable  title  made  of  said  premises, 
and  a  conveyance  of  the  fee  thereof,  free  from  all  incum- 
brances [or  otherwise,  according  to  the  contract]  to  pay  the 
residue  of  the  purchase  money  to  the  defendant  [and  to  give 
the  bond  and  mortgage  agreed], 

V.  That  on  the  day  last  mentioned,  at the  plain- 
tiff duly  tendered  to  the  defendant  said  sum  of  

dollars,  and  requested  such  a  conveyance  [and  offered  to  give 
the  bond  and  mortgage  agreed  for,  on  receiving  the  same], 
but  the  defendant  refused  and  still  refuses,  to  execute  or 
deliver  such  conveyance. 

VI.  [Where  purchase  money  lay  idle]:  That dol- 
lars, the  residue  of  said  purchase  money,  has  been  ready  and 
unproductive  in  the  hands  of  the  plaintiff,  for  completing  the 
purchase,  ever  since  the  said  day  on  which  it  ought  to  have 
been  completed. 

VII.  [Where  there  is  a  deficiency]:  That  since  the  making 
of  said  agreement  the  plaintiff  has  discovered  that  there  is  a 
deficiency  in  the  quantity  of  said  ....  and  that  the  same  does 
not  contain  ....  acres,  but  only  ....  acres. 

VIII.  [Where  a  claim  of  a  right  of  way  proved  to  be  un- 
founded]: That  at  the  time  of  treating  for  said  contract  said 
[defendant  or  agent]  represented  to  the  plaintiff  that  there  be- 
longed to  the  said  estate  a  right  of  way  from  the  said  estate  to 

street,  and  that  the  said  [defendant]  could  make  a  good 

title  in  fee  to  the  said  right  of  way,  which  said  right  of  way 
rendered  the  said  estate  very  convenient  for  the  business 
which  the  plaintiff  intended  to  carry  on  upon  the  said  prem- 
ises; and  that  before  the  agreement  of  the  said  ....  day  of 
,  19, .,  was  signed,  a  certain  plan  made  for  the  pur- 
pose of  showing  how  buildings  might  be  erected  on  the  said 
estate,  was  shown  to  the  plaintiff  by  the  said  [defendant  or 
agent]  and  upon  that  building-plan  the  said  right  of  way  was 
delineated;  and  by  the  said  building-plan,  and  the  represen- 
tations of  the  said  [defendant  or  agent]  the  plaintiff  was  led  to 
expect  that  he  should  have  a  right  of  way  directly  from  the 

said  estate  to street,  and  the  expectation  of  having 

such  right  of  way  was  a  great  inducement  to  the  plaintiff  to 
purchase  the  said  estate,  and  when  the  said  agreement  was 


Chapter  LXVL]  1049  [Form  1597. 

signed,  the  said  building-plan  was  delivered  to  the  plaintiff, 
and  the  same  is  now  in  the  plaintiff's  possession;  but  since 
the  signing  of  the  said  agreement  one  [an  adverse  claimant] 
has  claimed  to  be  exclusively  entitled  to  the  said  right  of 

way,  and  she  brought  an  action  in  the court  for  the 

recovery  of  the  possession  thereof,  and  in  that  action  she 
obtained  a  verdict,  and  she  has  recovered  possession  of  the 

said  road  or  way  from  the  said  estate  to street,  and 

she  has  since  sold  the  same,  and  that  the  plaintiff  is  now 
prohibited  from  using  the  said  road  or  way;  and  that  the 
plaintiff,  in  the  expectation  that  he  should  have  a  good  title 
made  to  the  said  estate,  entered  into  the  possession  thereof 
soon  after  signing  the  said  agreement,  and  has  ever  since 
been,  and  now  is,  in  the  possession  thereof,  and  has,  at  a 

great  expense,  to-wit, dollars,  purchased  a  piece  of 

ground,  and  made  a  road  from  the  estate  to street. 

IX.  [Where  there  is  an  outstanding  incumbrance]:  That 
the  defendant's  title  to  the  premises  is  incumbered  by  a  mort- 
gage to  one  M ....  N . . . .  for dollars,  with  interest 

semi-annually,  which  mortgage  is  not  payable  until  the  .... 
day  of ,19.. 

WHEREFORE  the  plaintiff  demands  judgment  that  a 
just  deduction  from  the  purchase  money  be  made  on  account 
of  said  deficiency,  and  on  account  of  the  plaintiff  not  having 
the  benefit  of  said  right  of  way,  and  on  account  of  said  incum- 
brance, and  for  interest  on  plaintiff's  purchase  money  which 
has  lain  idle;  and  that  on  payment  of  the  residue  of  said  pur- 
chase money  [or,  in  delivery  of  said  bond  and  mortgage]  the 
defendant  be  adjudged  to  specifically  perform  said  agree- 
ment; and  that  the  plaintiff  have  such  further  relief  as  may  be 
equitable,  with  the  costs  of  this  action. 

1597.    Upon  an  exchange  of  property,  possession  having 
been  taken. 

I.     That  on  the  ....  day  of ,  19 .  . ,  the  plaintiff  and 

the  defendant  entered  into  an  agreement  in  writing,  dated 
that  day,  whereby  in  consideration  of  the  covenants  on  the 
part  of  the  plaintiff  hereinafter  mentioned,  the  defendant 
covenanted  that  he  would,  on  or  before  the   ....   day  of 

,  19 .  .,  convey  to  the  plaintiff  in  fee  by  warranty  deed, 

and  with  covenants  for  quiet  enjoyment  and  against  incum- 


Form  1598.]  1050  [Chapter  LXVI. 

brances  [or  otherwise,  according  to  the  agreement]  sl  lot  of  land 

situate  in  the  town  of and  county  of in  the 

state   of    and   described   as   follows    [description   of 

premises].  In  consideration  whereof  the  plaintiff  covenanted 
in  and  by  said  agreement  [state  his  covenant  in  same  manner]. 
And  it  was  further  provided  in  said  agreement  that  each 
party  might  enter  into  immediate  possession  of  the  premises 
so  to  be  conveyed  to  him,  and  have  and  receive  the  profits 
to  his  own  use.  [or  attach  copy  of  the  agreement]. 

II.  That  thereafter,  in  pursuance  of  said  agreement,  the 
plaintiff  and  the  defendant  respectively  took  possession  of  the 
premises  so  to  be  conveyed  to  them,  and  still  severally 
occupy  the  same. 

III.  That  the  plaintiff  duly  performed  all  the  conditions 

of  said  contract  on  his  part,  and  on  the  ....  day  of 

19..,  tendered  to  the  defendant  a  warranty  deed  of  said 

premises  in with  covenants  for  quiet  enjoyment  and 

against  incumbrances,  duly  signed  and  sealed  by  the  plaintiff, 

and  demanded  of  him  a  deed  of  said  premises  in ; 

but  the  defendant  refused  to  execute  and  deliver  such  to  the 
plaintiff,  and  still  neglects  so  to  do. 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
defendant  specifically  perform  his  said  agreement  and  convey 
to  the  plaintiff  the  said  lot  and  land  which  by  said  agreement 
he  contracted  to  convey,  and  that  he  be  required  to  receive 
plaintiff's  said  deed,  and  that  the  plaintiff  have  such  further 
relief  as  may  be  equitable,  and  the  costs  of  this  action. 

1598.  By  vendee  against  vendor  to  enforce  oral  con- 
tract of  sale  when  contract  has  been  so  far  per- 
formed as  to  take  the  case  out  of  the  statute  of 
frauds. 

I.  That  the  defendant  was  on  the day  of 

19..,  the  owner  in  fee  of  the  following  real  estate  [insert 
description],  and  that  defendant  still  has  the  legal  title  to 
said  lands. 

II.  That  on  said  day  defendant  sold  said  premises  to  the 

plaintiff  for  the  sum  of dollars,  payable  [state  terms] 

by  an  oral  contract,  whereby  he  agreed  to  convey  said 
premises  to  plaintiff  by  a  warranty  deed  upon  the  payment 
by  the  plaintiff  of  the  consideration  aforesaid. 


Chapter  LXVL]  1051  [Form  1599. 

III.  That  defendant  thereupon  delivered  the  possession 
of  said  premises  to  the  plaintiff  under  said  contract,  and  the 
plaintiff  has  ever  since  been  and  still  is  in  possession  of  the 
same  under  said  contract. 

IV.  That  plaintiff  has  paid  to  the  defendant  the  entire 
consideration  aforesaid  [or,  the  following  sums  to  apply  upon 
said  consideration,  to-wit,  state  amounts  and  when  paid]. 

V.  That  there  is  still  due  said  defendant  the  sum  of 

dollars  under  said  contract,  which  sum  the  plaintiff 

tendered  to  the  defendant  on  the  ....  day  of ,  19. ., 

but  the  defendant  then  refused  and  still  refuses  to  execute 
and  deliver  a  proper  deed  of  said  premises  to  the  plaintiff. 

VI.  That  plaintiff,  while  in  possession  of  said  premises 
under  said  contract,  has  erected  a  building  upon  said  prem- 
ises [or  made  other  improvements,  specifying  them]  of  the  value 
of dollars. 

VII.  That  plaintiff  has  duly  performed  all  of  the  condi- 
tions of  said  contract  on  his  part,  and  now  brings  the  balance 

of  the  purchase  money,  to-wit,  the  sum  of dollars 

into  court,  and  offers  the  same  to  said  defendant  upon  his 
executing  and  delivering  to  plaintiff  a  proper  conveyance  of 
said  premises  according  to  the  terms  of  said  contract. 

WHEREFORE  plaintiff  prays  that  defendant  be  required 
to  receive  the  said  sum  so  brought  into  court,  and  to  speci- 
fically perform  the  said  contract  on  his  part,  by  executing  and 
delivering  to  the  plaintiff  a  warranty  deed  of  the  said  prem- 
ises, and  that  the  plaintiff  have  such  further  relief  as  may  be 
equitable,  and  the  costs  of  this  action. 

1599.    By  creditor,  for  performance  of  agreement  to  give 
a  chattel  mortgage. 

I.     That  on  the day  of 19 . .,  the  plaintiff  and 

defendant  entered  into  an  agreement  whereby  the  plaintiff, 
then  being  the  owner  of  [designate  the  goods,  or  if  numerous, 
attach  schedule]  agreed  to  sell  and  deliver  the  same  to  the 
defendant;  in  consideration  whereof  the  de  endant  promised 

to  pay  him dollars  cash  upon  the  delivery  of  said 

goods  and dollars months  from  the  date  of 

said  delivery,  and  to  give  on  the  delivery  of  such  goods  a 
chattel  mortgage  thereon  to  the  plaintiff,  to  secure  the 
payment  of  said dollars. 


Form  1600.]  1052  [Chapter  LXVI. 

II.  That  pursuant  to  said  contract  the  plaintiff,  on  the 
....  day  of ,  19 .  .,  delivered  said  goods  to  the  defend- 
ant, who  is  now  in  possession  thereof,  and  who  paid  him  the 

sum  of dollars,  but  failed  to  deliver  to  him  a  chattel 

mortgage  thereon,  pursuant  to  said  agreement;  and  although 

afterwards,  on  the  ....  day  of ,  19.  .,  requested  to 

deliver  such  chattel  mortgage  to  plaintiff,  he  refused  so  to  do. 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
defendant  execute  and  deliver  to  the  plaintiff  a  chattel 
mortgage  on  said  goods,  pursuant  to  said  contract;  and  that 
the  plaintiff  have  such  further  relief  as  may  be  just,  with  the 
costs  of  this  action. 


1600.    By  lessee  for  specific  performance  of  an  agree- 
ment to  lease  real  estate. 

I.  That  on  the  ....  day  of ,  19. .,  the  defendant 

was  and  still  is  the  owner  of  the  following  described  premises 
[insert  description]  and  that  on  said  day  the  plaintiff  and  de- 
fendant entered  into  a  written  agreement  whereby  the  said 
defendant  agreed  to  lease  said  premises  to  the  plaintiff  for  the 

term  of  ...  .  years  from ,  19. .,  at  the  annual  rental  to 

be  paid  by  plaintiff  of  the  sum  of dollars,  to  be  paid 

on  the  ....  day  of in  each  year  [or  attach  copy  of  the 

lease  as  an  exhibit  to  complaint]. 

II.  That  in  reliance  upon  said  agreement  the  plaintiff  on 
or  about  the  ....  day  of  ,  19.  .,  repaired  and  im- 
proved the  dwelling  house  upon  said  premises  at  an  expense 

of dollars  [or  state  other  acts  done  in  reliance  upon  the 

agreement  in  accordance  with  the  facts]. 

III.  That  plaintiff  has  duly  performed  all  the  conditions 
of  said  agreement  on  his  part  to  be  performed,  and  has 
always  been  and  now  is  ready  and  willing  to   accept  a  lease 

of  said  premises,  and  on  the  ....  day  of ,  19.  .,  duly 

tendered  to  the  defendant  the  rent  of  said  premises  for  the 
first  year,  and  requested  that  defendant  execute  a  lease 
thereof  according  to  the  terms  of  said  agreement,  but  that 
defendant  refused  and  still  refuses  to  make  such  agreement. 

IV.  That  by  reason  of  the  premises,  the  plaintiff  has  no 
adequate  remedy  at  law  for  the  breach  of  said  agreement  by 
the  defendant. 


Chapter  LXVL]  1053  [Form  1601. 

WHEREFORE  plaintiff  demands  judgment  that  the  said 
defendant  be  required  to  specifically  perform  said  agreement 
and  execute  and  deliver  the  said  lease,  and  that  plaintiff  have 
such  further  relief  as  may  be  equitable,  and  for  the  costs  of 
this  action. 

1601.  For  specific  performance  of  an  agreement  to  exe- 
cute a  chattel  mortgage  on  personal  property, 
and  to  set  aside  fraudulent  disposition  of  the 
property  (adapted  from  St.  John  v.  Griffith,  2 
Abb.  Pr.  198). 

I.  That  on  the  ....  day  of ,  19.  .,  the  plaintiff  be- 
ing the  owner  of  the  following  described  property  [describe 
property]  on  said  day  entered  into  an  agreement  with  the  de- 
fendant C . . . .  D . . . .  whereby  said  plaintiff  agreed  to  sell 
and  deliver  the  same  to  the  defendant  C . . . .  D . . . .  for  the 

sum  of dollars,  one-half  of  which  said  C . . . .  D . , , . 

agreed  to  pay  on  the  delivery  of  said  property,  and  the  re- 
mainder in  ....  months  from  the  date  thereof,  and  to  give  a 
mortgage  on  said  property  to  the  plaintiff  to  secure  the  pay- 
ment of  said  sum  of dollars. 

II.  That  in  pursuance  of  said  contract  the  plaintiff  on  said 
day  delivered  said  goods  to  the  defendant  C . . . .  D . . . .  and 
received  from  him  the  sum  of dollars,  being  one- 
half  of  the  price  thereof,  but  said  defendant  did  not  deliver  to 
plaintiff  a  mortgage  upon  said  goods  to  secure  the  amount 
remaining  unpaid  thereon,  as  provided  in  said  agreement. 

III.  That  on  the  ....  day  of ,  19 . .,  the  plaintiff 

requested  the  defendant  C . . .  .  D . . . .  to  execute  and  deliver 
said  mortgage  to  tlie  plaintiff,  which  he  then  refused  to  do, 
and  still  refuses. 

IV.  That  on  the  ....  day  of ,  19 . .,  the  defendani 

C . . . .  D . . . .  with  intent  to  defraud  the  plaintiff  and  deprive 
him  of  his  security,  made,  executed  and  delivered  to  the 
defendant  E....  F....  without  consideration,  a  chattel 
mortgage  in  form  covering  the  said  property,  and  that  the 
said  E . . . .  F. . . .  then  and  there  knew  of  the  said  agreement 
between  the  plaintiff  and  the  defendant  C .  .  . .  D . . .  .  and 
accepted  said  mortgage  with  intent  to  assist  said  C... 
D . . . .  in  defrauding  the  plaintiff,  and  that  the  said  E .  .  .  . 
F. . . .  has  caused  said  mortgage  to  be  duly  filed  in  the  office 


Form  1602.]  1054  [Chapter  LXVI. 

[state  proper  oj[fice]  and  now  claims  to  hold  the  same  as  a 
valid  and  subsisting  lien  upon  said  property  [or  state  other 
acts  showing  inadequacy  of  the  remedy  at  law], 

WHEREFORE  plaintiff  demands  judgment  that  the  said 
defendant  C . . . .  D . . .  .  be  required  to  specifically  perform 
his  said  agreement,  and  to  execute  and  deliver  to  the  plaintiff 
a  chattel  mortgage  upon  said  property  in  accordance  with 
said  agreement,  and  that  the  said  mortgage  given  to  the 
defendant  E. . . .  F. . . .  be  adjudged  fraudulent  and  void  as 
against  the  plaintiff  and  for  such  other  relief  as  may  be 
equitable,  with  costs. 

1602.    To  enforce  specific  performance  of  an  agreement 
by  a  railroad  to  construct  a  farm  crossing. 

I.  [Allege  corporate  character  of  defendant,  as  in  Chapter 
XIX.] 

II.  That  on  the day  of ,  19 . .,  the  defendant 

had  located  its  railroad  across  the  [describe  premises]  which 
premises  were  and  still  are  the  farm  of  the  plaintiff,  on  which 
he  resides,  and  on  said  day  the  plaintiff  and  defendant 
entered  into  an  agreement  in  writing  for  the  right  of  way  of 
said  railroad  across  said  premises,  and  for  a  farm  crossing,  of 
which  a  copy  is  attached  hereto,  made  part  of  this  complaint, 
and  marked  Exhibit  A. 

III.  That  in  pursuance  of  said  agreement  the  plaintiff  on 

the  ....  day  of ,  19 . .,  executed  and  delivered  to  said 

defendant  a  deed  of  said  right  of  way,  but  which  deed  con- 
tained no  reference  to  the  agreement  for  a  farm  crossing. 

IV.  That  on  or  about  the  ....  day  of ,  19. .,  the 

defendant  completed  the  construction  of  its  railroad  across 
said  land,  but  failed  to  construct  a  farm  crossing  over  its  said 
railroad,  whereby  it  has  been  made  impossible  for  the  plaintiff 
to  drive  his  stock  across  said  track,  and  whereby  also  one  part 
of  plaintiff's  said  farm  has  been  and  is  severed  from  the  other 
part  thereof. 

V.  That  on  the day  of 19. .,  the  plaintiff 

requested  the  defendant,  through  its  proper  ofTicers,  to  con- 
struct such  crossing,  but  it  then  refused  and  still  refuses  to  do 
so. 

VI.  That  the  plaintiff  is  the  owner  of  ....  head  of  cattle 
[or  state  what  stock]  which  he  keeps  on  said  farm,  and  it  is  nee- 


Chapter  LXVL]  1055  [Forms  1603,  1604. 

essary  each  day  to  drive  said  cattle  to  the  pasture  across  said 
railroad,  but  in  consequence  of  the  breach  of  said  agreement 
he  is  compelled  daily  to  drive  his  cattle  one  mile  out  of  a 
direct  route,   and   has   sustained   damages   in   the   sum   of 

dollars  [or  state  other  facts  showing  the  inadequacy  of 

the  remedy  at  law]. 

WHEREFORE  plaintiff  demands  judgment  that  the  de- 
fendant be  required  to  specifically  perform  its  said  agreement 
and  construct  said  crossing,  and  that  the  plaintiff  recover  his 
damages  aforesaid,  and  have  such  further  relief  as  may  be 
equitable,  with  costs. 

1603.  Outline  of  complaint  for  reformation  of  contract 

and  specific  performance  thereof  as  reformed. 

I.  [Allege  the  making  of  the  contract  in  which  the  mistake 
occurred  either  by  stating  its  legal  effect  or  by  attaching  a  copy 
and  making  it  a  part  of  the  complaint]. 

II.  [Allege  the  mistake  describing  the  same  accurately  and 
how  it  was  made  whether  by  error  of  the  receiver  or  by  mutual 
mistake  of  the  parties,  stating  what  was  intended  to  be  expressed]. 

III.  [Allege  performance  by  the  plaintiff  of  all  the  conditions 
of  the  contract  on  his  part,  or  if  any  are  yet  to  be  performed 
allege  readiness  and  willingness  to  perform  same  and  if  money 
is  to  be  paid  allege  readiness  to  bring  the  same  into  court]. 

WHEREFORE  plaintiff  demands  judgment  reforming 
said  contract  [state  how]  and  [here  state  acts  of  specific  per- 
formance to  which  plaintiff  deems  himself  entitled.  See 
previous  complaints  in  this  chapter]. 

1604.  On  an  exchange  of  lands  both  parties  having  taken 

possession. 

I.  That  on  the  ....  day  of ,  19 .  .,  the  plaintiff  and 

the  defendant  entered  into  an  agreement  in  writing,  dated 
that  day,  of  which  a  copy  is  hereto  attached  made  a  part  of 
this  complaint  and  marked  Exhibit  A  [or  state  legal  effect  of 
the  agreement  so  as  to  show  the  covenants  which  each  party 
made]. 

II.  That  thereafter,  in  pursuance  of  said  agreement,  the 
plaintiff  and  the  defendant  respectively  took  possession  of 
the  premises  so  to  be  conveyed  to  them,  and  still  severally 
occupy  the  same. 


Form  1605.]  1056  [Chapter  LXVI. 

III.  That  the  plaintiff  duly  performed  all  the  conditior.s 
of  said  contract  on  his  part,  and,  on  the  said  ....  day  of 

,  19. .,  tendered  to  the  defendant  a  warranty  deed  of 

said  premises  so  agreed  to  be  conveyed  by  the  plaintiff, 
with  covenants  for  quiet  enjoyment  and  against  incum- 
brances, duly  signed  and  sealed  by  the  plaintiff,  and  de- 
manded of  him  a  deed  of  said  premises  so  agreed  to  be  con- 
veyed by  the  defendant;  but  the  defendant  refused  to 
execute  and  deliver  such  to  the  plaintiff,  and  still  neglects  so 
to  do. 

WHEREFORE,  the  plaintiff  demands  judgment  that  the 
defendant  be  decreed  to  specifically  perform  said  agreement, 
and  that  he  receive  plaintiff's  said  deed  and  convey  to  the 
plaintiff  said  last  named  premises,  pursuant  to  the  said 
contract;  that  plaintiff  have  such  other  and  further  relief  as 
may  be  just,  with  the  costs  of  this  action. 

1605.    To  enforce  performance  of  a  contract  to  transfer 
corporate  stock. 

I.  [Allege  the  making  of  the  contract  by  which  the  defendant 
contracted  to  transfer  the  stock  to  the  plaintiff  according  to  its 
legal  effect,  or  if  it  be  in  writing  attach  a  copy]. 

II.  [Allege  the  compliance  by  the  plaintiff  with  the  condi- 
tions of  the  contract  on  his  part  to  be  performed]. 

III.  That  the  said  shares  of  stock  are  of  great  and  rapidly- 
increasing  value,  and  the  same  cannot  be  purchased  in  open 
market;  that  if  the  defendant  does  not  deliver  the  same  to 
the  plaintiff  the  plaintiff  will  suffer  great  and  irremediable 
loss,  for  which  a  judgment  in  damages  will  be  no  adequate 
compensation. 

IV.  That  the  defendant  is  a  person  of  no  adequate 
pecuniary  means  to  answer  a  judgment  in  damages  for  the 
breach  of  the  contract  and  agreement  aforesaid. 

WHEREFORE  the  plaintiff  demands  judgment,  that  the 
defendants  may  be  decreed  to  deliver  and  transfer  to  the 

plaintiff  the  amount  aforesaid  of   dollars  in  the 

shares  of  the  stock  of  said  company;  that,  in  the  meantime, 
and  until  the  fmal  hearing  and  determination  of  this  action, 
the  defendant  E. . . .  F.  .  .  .  may  be  enjoined  from  transfer- 
ring, incumbering,  disposing  of,  or  interfering  with,  any  of 
said  shares  and  that  the  plaintiff  may  recover  his  costs  and 


Chapter  LXVL]  1057  [Forms  1606-1608 

disbursements  of  this  action,  and  for  such  other  and  further 
rehef  as  to  the  court  may  seem  just. 

1606.  Outline  of  complaint  by  adopted  child  to  compel 

performance  of  agreement  to  give  him  a  speci- 
fied share  of  estate. 

I.  [Allege  the  making  of  the  contract  or  agreement  between 
the  deceased  and  the  plaintiff's  mother  or  father  by  which  the 
plaintiff  was  surrendered  up  by  his  parent  or  parents  to  the 
deceased  on  the  promise  of  the  deceased  to  rear,  educate,  and 
maintain  him  as  a  son,  and  to  give  him  the  interest  of  a  son  in 
his  estate  at  his  decease]. 

II.  [Allege  the  performance  of  said  agreement  so  far  as  it 
has  been  performed  on  both  sides;  especially  showing  that 
the  plaintiff  has  performed  all  the  duties  and  obligations  of  a 
son  up  to  the  time  of  the  decease  of  the  testator  or  intestate], 

III.  [Allege  the  death  of  the  promisor  and  the  fact  that  he 
made  no  provision  whatever  for  the  plaintiff  either  by  will  or 
otherwise]. 

IV.  [Set  forth  the  property  left  by  the  deceased.] 
WHEREFORE,   [pray  judgment  for  specific  performance 

of  the  contract]. 

1607.  To  enforce  specific  performance  of  contract  in  re- 

lation to  mines,  compel  conveyance  of  claims, 
and  accounting. 

[See  complaint  sustained  and  reported  in  full  in  Lawrence  vs. 
Robinson,  4  Colo.  567]. 

1608.  To  enforce  a  contract  for  sale  on  joint  account  of 

mining  claims  to  a  corporation,  to  declare  a 
trust  in  the  corporate  stock  received  by  de- 
fer dant  therefor  and  for  damages. 

[See  complaint  reported  in  full  in  Chambers  vs.  Mittnacht, 
23  S.  Dak.  449;  122  N.  W.  434]. 
67 


CHAPTER  LXVII. 


COMPLAINT  TO  ENFORCE  VENDOR'S  LIEN. 


1609.  By  vendor  against  purchaser, 
and  his  grantee  and  judg- 
ment creditors,  to  enforce 


lien  for  purchase  money. 
1610.  Vendor  against  purchaser  to 
enforce  vendor's  lien. 


In  most  states  a  vendor  of  real  estate  has  an  equitable 
right  to  a  hen  upon  the  land  sold  for  unpaid  purchase 
money.  It  is  rather  an  equitable  right  to  acquire  a  lien 
by  action  than  a  lien  itself.  It  is  defeated  by  conveyance 
of  the  land  by  the  vendee  to  an  innocent  purchaser  without 
notice  as  well  as  by  the  acceptance  by  the  vendor  of  securities 
upon  other  property  in  addition  to  the  vendee's  personal 
obhgation.  Berger  v.  Berger,  104  Wis.  282;  80  N.  W.  585; 
Willard  v.  Reas,  26  Wis.  540;  Iowa  Code  sec.  2924;  Ken- 
drick  V.  Eggleston,  56  Iowa,  128;  Bray  v.  Booker  (N.  Dak.), 
79  N.  W.  293.  The  right  is  also  extended  generally  to  a  third 
person  who  had  advanced  all  or  a  part  of  the  purchase 
money  expressly  for  the  purpose.  Carey  v.  Boyle,  53  Wis. 
574;  11  N.  W.  47.  In  North  and  South  Dakota  these  prin- 
ciples are  embodied  in  statutes.  N.  Dak.  Rev.  Codes, 
1905,  sees.  6281-6285;  S.  Dak.  C.  C.  1908,  sees.  2148-2152. 


1609.  By  vendor  against  purchaser,  and  his  grantee  and 
judgment  creditors,  to  enforce  lien  for  purchase 
money. 

I.  That  the  plaintiff,  being  owner  in  fee  [or  otherwise]  of 
the  real  property  hereinafter  described,  did  on  the  ....  day 

of   ,   19..,  sell  the  same  to  the  defendant  [naming 

purchaser]  for  the  sum  of dollars,  and  thereupon  by 

his  deed  conveyed  the  same  to  the  defendant  [in  fee]  which 
premises  are  [bounded  and]  described  as  follows  [full  descip- 
tion,  as  in  deed]. 

II.  That  the  said  [purchaser]  has  paid  the  plaintiff 

dollars,  part  of  said  purchase  money  [and  state  what  security 


Chapter  LXVIL]  1059  [Form  1610. 

if  any  was  given  for  the  rest,  e.  g.,  thus:]  and  on  the  ....  day 

of ,  19..,  gave  to  the  plaintiff  his  promissory  note 

for dollars,  the  residue  thereof,  payable  on  the  .... 

day  of ,  19 . . ;  but  that  no  part  [of  said  note  or]  of  the 

residue  of  said  purchase  money  has  been  paid,  though  on 

the  ....  day  of ,  19. .,  the  plaintiff  duly  demanded 

the  same  of  said  [purchaser]. 

III.  That  the  said  [purchaser's  grantee]  purchased  of  the 
[purchaser]  a  portion  of  said  premises,  with  the  full  knowledge 
that  the  said  [purchaser]  had  not  paid  the  balance  cf  said 
purchase-money,  and  took  a  conveyance  from  the  said 
[purchaser]  to  him  for  the  said  premises  so  by  him  purchased 
of  the  said  [purchaser]. 

IV.  That  the  said  [judgment  creditor]  claims  to  have  re- 
covered judgment   against  the  said   [purchaser]   for  about 

dollars,  on  the    ....    day  of    ,   19..,  in  the 

court,  and  has  caused  execution  to  be  issued  thereon, 

and  is  proceeding  to  sell  the  part  of  said  premises  not  sold 
to  the  said  [purchaser's  grantee];  whereby  the  said  plaintiff 
will  wholly  lose  the  balance  of  the  said  purchase  money, 
as  the  said  [purchaser]  is  wholly  insolvent,  and  unable  to 
pay  the  same. 

WHEREFORE  the  plaintiff  demands  judgment,  that  the 
plaintiff  be  adjudged  to  have  an  equitable  lien  upon  said 
lands  for  the  unpaid  purchase  price  thereof  aforesaid,  and 
that  such  lien  be  adjudged  to  be  superior  to  the  liens  or 
interests  of  the  defendants  in  said  lands,  and  that  the  said 
defendants  be  barred  and  foreclosed  of  all  right,  lien  or 
equity  of  redemption  in  said  lands,  and  that  the  same  be 
sold  under  the  direction  of  this  court,  and  the  plaintiff  be 
paid  the  amount  of  said  lien  out  of  the  proceeds  of  such 
sale,  together  with  the  expenses  of  such  sale  and  the  costs 
of  this  action,  and  that  in  case  of  dsficiency  the  plaintiff 
have  judgment  against  the  defendant  [purchaser]  for  the 
amount  thereof,  and  for  such  further  relief  as  may  be 
equitable. 

1610.    Vendor  against  purchaser  to  enforce  vendor's 
lien. 

I  and  II.    [Same  as  I  and  II  in  last  preceding  form]. 

III.     That  olaintiff  has  no  security  for  the  payment  of 


Form  1610.]  1060  [Chapter  LXVII. 

said  sum  other  than  his  vendor's  hen  upon  said  premises, 
and  that  the  defendant  is  insolvent. 

WHEREFORE  plaintiff  demands  judgment  for    

dollars  with  interest  thereon  from   19.  .,  and  for  a 

lien  for  that  amount  on  said  premises,  and  directing  a  sale 
of  said  premises  to  satisfy  said  lien  and  the  costs  and  expenses 
of  this  action,  and  for  such  other  relief  as  may  be  just. 


CHAPTER  LXVIII. 


COMPLAINTS  TO   ENFORCE   MECHANICS'  LIENS. 


1611.  Complaint  for  foreclosure  of 

mechanic's  lien;  contractor 
against  owner  and  other 
lien  claimants.  (Wiscon- 
sin.) 

1612.  The    same,    for    reasonable 

value  of  materials  sold  or 
labor  furnished  to  owner. 
(Wisconsin.) 

1613.  By    employee    of    principal 

contractor  against  owner 
and  principal  contractor. 
(Wisconsin.) 

1614.  By  several  employees  against 

principal  contractor  and 
owner.     (Wisconsin.) 

1615.  Allegations  of  assignment  of 

lien.     (Wisconsin.) 

1616.  For  foreclosure  of  mechanic's 

lien.     (Minnesota.) 

1617.  The   same,   by   employee   of 

principal  contractor.  (Min- 


nesota.) 

1618.  The  same,  for  materials  fur- 

nished to  owner.  (Min- 
nesota.) 

1619.  For  foreclosure  of  mechanic's 

lien,  general  form.  (Iowa.) 

1620.  For  foreclosure  of  mechanic's 

lien,  general  form.  (North 
and  South  Dakota.) 

1621.  For  foreclosure  of  mechanic's 

lien,  contractor  against 
owner,  general  form.  (Ne- 
braska.) 

1622.  The  same,  where  subsequent 

lien-holders  or  incum- 
brancers are  joined.  (Ne- 
braska.) 

1623.  By     subcontractor     against 

principal  contractor  and 
owner.     (Nebraska.) 

1624.  Allegation  of  fraudulent  lien. 


Mechanics'  liens  and  actions  to  enforce  them  are  creatures 
of  the  statutes  of  the  various  states.  While  these  statutes 
are  quite  similar  there  are  many  substantial  differences 
in  details.  In  drawing  a  complaint  close  attention  should  be 
paid  to  the  statute  of  the  particular  state,  and  care  should 
be  taken  to  state  clearly  every  fact  made  necessary  by  that 
statute  to  the  perfecting  of  a  lien  prior  to  action.  The 
various  statutes  will  be  found  listed  in  chapter  XIII,  Note  1. 


1611.  Complaint  for  foreclosure  of  mechanic's  lien:  con- 
tractor against  owner  and  other  lien  claimants 
(Wis.  Stats.  1913  sec.  3322). 

I.  That  the  plaintiff  is  now  and  was  at  the  times  herein- 
after stated  a  contractor  and  builder  doing  business  as  such 
at  the  ....  of state  of  Wisconsin,  and  that  as  such 


Form  1611.]  1062  [Chapter  LXVIII. 

contractor  and  builder  *  on  or  about  the  ....  day  of , 

19. .,  he  entered  into  an  oral  [or  written  contract  with  the 
defendant  [owner]  whereby  he  agreed  to  construct  and  erect, 
and  furnish  all  the  materials  for  [or  to  do  all  the  carpenter 
work  and  furnish  all  the  materials  therefor  in  and  about] 
the  construction  and  erection  of  a  certain  dwelhng  house 
for  the  said  defendant  [owner]  upon  [describe  premises]  for 

the  sum  of dollars  to  be  paid  by  the  said  [owner] 

upon  the  completion  of  the  said  building.  [Or,  a  true  copy 
of  which  contract  is  hereto  annexed,  made  part  of  this 
complaint,  and  marked  Exhibit  A.] 

II.  That  in  pursuance  of  said  contract  and  in  full  accord- 
ance with  the  terms  thereof  the  plaintiff,  on  and  between  the 

day  of ,  19 . . ,  and  the  ....  day  of ,  19 . . , 

erected  and  constructed  said  building  [or  performed  all  the 
carpenter  work  in  the  construction  of  said  building]  upon 
the  premises  aforesaid  and  furnished  all  the  materials 
therefor  and  duly  performed  all  the  conditions  of  said 
contract  on  his  part  to  be  performed. 

III.  That  the  said  [owner]  was  at  the  dates  hereinbefore 
mentioned  and  still  is  the  owner  in  fee  of  the  premises  herein- 
before mentioned,  and  that  the  said  premises  are  [situated 

within  the  incorporated  city  of in  said  state  and  do 

not  exceed  one  acre  in  extent]  [or,  not  situated  within  the 
limits  of  any  incorporated  city  or  village,  and  do  not  exceed 
forty  acres  in  extent.]    [Wis.  Stats.  1913  sec.  3314  subd.  7.] 

IV.  That  the  last  date  upon  which  said  work  and  labor 
of    constructing    said    building    was    performed,    and    said 

^laterials  were  furnished  is  the   ....   day  of ,  19. ., 

and  that  said  plaintiff  duly  filed,  as  required  by  law,  his 
claim  for  a  lien  for  the  amount  due  and  owing  him  as  aforesaid 
from  said  defendant,  in  the  office  of  the  clerk  of  the  circuit 

court  of  the  county  of on  the  ....  day  of , 

19. .,  and  within  six  months  from  the  time  of  the  doing  of 
said  work,  and  the  furnishing  of  the  building  materials 
aforesaid,  which  claim  for  a  lien  so  filed  was  duly  signed  by 
the  claimant  [or  by  L. .. .  M. . . .  the  attorney  of  the  claim- 
ant] and  contained  a  statement  of  the  contract  or  demand 
on  which  it  is  founded,  the  name  of  the  person  against  whom 
the  demand  is  claimed,  the  name  of  the  claimant  or  assignee, 
the  last  date  of  the  performance  of  labor  or  furnishing  of 

-materials,  a  description  of  the  property  affected  thereby. 


Chapter  LXVIIL]  10G3  [Form  1611. 

a  statement  of  the  amount  claimed,  and  all  other  material 
facts  in  relation  thereto,  a  copy  of  which  claim  is  hereto 
annexed  and  made  part  of  this  complaint,  and  marked 
Exhibit  B. 

V.  That  one  year  has  not  elapsed  since  the  doing  of  said 
work  and  labor,  and  furnishing  of  the  building  materials 
aforesaid,  and  the  commencement  of  this  action;  that  no 
part  of  the  contract  price  has  been  paid  except  the  sum  of 

dollars;  that  there  is  now  due  to  and  owing  the 

plaintiff  from  said  defendant  on  account  of  said  contract, 
and  the  performance  of  said  labor  and  furnishing  of  said 

materials,  the  sum  of dollars,  with  interest  from 

the day  of ,  19. . 

VI.  That  the  defendant  [other  lien  claimant]  has  filed  a 
claim  for  a  lien  upon  the  premises  aforesaid,  for  the  amount 

of   dollars  and  costs,  which  claim  was  filed  in  the 

office  of  the  clerk  of  the  circuit  court  for  the  county  of 

aforesaid  on  the day  of 19 . .,  for  [state  whether 

for  materials  or  labor]  and  that  no  other  claim  for  liens  on 
said  premises  have  been  filed. 

VII.  That  the  defendants  [subsequent  purchasers,  or  lien 
holders]  have  or  claim  to  have  some  interest  in  or  lien  upon 
the  said  premises,  which  interest  or  lien,  if  any,  is  subsequent 
and  subject  to  the  lien  of  the  plaintiff. 

VIII.  That  the  relation  of  landlord  and  tenant  did  not 
exist  between  the  plaintiff  and  the  defendants  or  either  of 
them  at  any  of  the  times  hereinbefore  mentioned. 

WHEREFORE  plaintiff  demands  judgment  that  the 
demands  of  all  persons  having  filed  claims  for  Hens  upon  the 
premises  aforesaid,  whether  plaintiffs  or  defendants,  be 
ascertained  and  adjudged,  and  that  the  interest  of  [owner] 
the  person  owning  said  premises  at  the  time  of  the  com- 
mencement of  the  work  and  furnishing  of  the  materials 
aforesaid  upon  the  premises  hereinbefore  described,  of, 
in  and  to  the  premises  aforesaid,  or  the  interest  therein 
which  said  [owner]  or  any  person  claiming  under  him  has 
since  acquired,  be  sold  to  satisfy  the  amount  of  the  liens  so 
ascertained  and  adjudged,  with  the  costs  of  this  action, 
and  that  in  case  of  deficiency  arising  upon  such  sale  then 
that  upon  confirmation  thereof  the  plaintiff  recover  judg- 
ment   for    such    deficiency    against    [defendants    personally 


Forms  1612,  1613.]  1064  [Chapter  LXVIII. 

liable]  and  have  execution  therefor,  and  for  such  further 
rehef  as  may  be  just  and  equitable. 

1612.  The  same,  for  reasonable  value  of  materials  sold 

or  labor  furnished  to  owner  (Wisconsin). 

I.     [As  in  last  preceding  form  to  the  *]  on  and  between  the 

....  day  of ,  19.  .,  and  the  ....  day  of ,  19.  ., 

at  the  special  instance  and  request  of  the  defendant  [owner] 
and  upon  his  promise  to  pay  the  reasonable  value  thereof, 
the  plaintiff  performed  work  and  labor  and  furnished  certain 
lumber  and  other  building  materials  to  the  defendant  in 
and  about  the  erection,  construction  and  repair  of  a  certain 
dwelling  house  owned  by  the  said  defendant  [owner]  and 
situated  upon  the  following  described  premises  [inserl 
description]  which  labor  and  materials  were  of  the  reasonable 

value  of   dollars,  a  true  statement  and  account  of 

which  labor  and  materials  so  performed  and  furnished  is 
hereto  attached,  made  part  of  this  compalaint,  and  marked 
Exhibit  A. 

[Omit  paragraph  II  of  the  preceding  form,  and  proceed  there- 
after as  in  said  form,  making  such  incidental  changes  as  may 
be  necessary.] 

1613.  By  employee  of  principal  contractor  against  owner 

and  principal  contractor  (Wis.  Stats.  1913  sees. 
3315-3322). 

I.  That  on  or  about  the  ....  day  of ,  19.  .,  the 

defendants  [owner  and  principal  contractor]  entered  into  a 
certain  contract  whereby  the  said  [principal  contractor] 
agreed  to  construct  [set  forth  contract  as  in  allegation  I  of 
Form  1611]. 

II.  [Allege  performance  of  contract  by  principal  contractor 
as  in  allegation  II  of  Form  1611.] 

III.  [As  in  allegation  III  of  Form  1611.] 

IV.  That  the  plaintiff  is  a  carpenter,  and  on  or  about  the 
....  day  of 19.  .,  the  said  defendant  [principal  con- 
tractor] employed  the  plaintifT  to  perform  work,  labor  and 
services  as  such  carpenter,  in,  and  upon  the  building  and 
construction  of  said  dwelling  house,  and  agreed  to  pay  the 

plaintiff  at  the  rate  of dollars  per  day  for  such  labor, 

and    that   under   said    agreement    the    plaintiff    performed 


Chapter  LXVIIL]  1065  [Form  1613. 

work  and  labor  as  carpenter  in  and  about  the  erection  and 
construction  of  said  building  on  and  between  the  ....  day 

of ,  19.  .,  and  the  ....  day  of ,  19. .,  for  .... 

days,  whereby  the  said  [principal  contractor]  became  indebted 

to  the  plaintiff  in  the  sum  of dollars,  which  sum  has 

not  been  paid,  nor  any  part  thereof,  and  still  remains  justly 
due  to  the  plaintiff. 

V.  That  the  last  date  of  the  performance  of  the  said 
work  and  labor  upon  said  building  by  the  plaintiff  under  his 
said  employment  is  the  ....  day  of ,  19 . . 

VI.  That  on  the  ....  day  of ,  19.  .,  the  plaintiff 

gave  notice  in  writing  to  the  said  defendant  [owner]  the  owner 
of  the  property  to  be  affected  by  such  lien,  setting  forth 
therein  that  he,  the  plaintiff,  had  been  employed  by  said 
defendant  [principal  contractor]  to  perform  work  and  labor 
upon,  in  and  about  the  construction  of  such  building,  and 
had,  as  such  carpenter,  actually  performed  work,  labor  and 
services  thereon  for  the  period  of  ....  days,  at  the  agreed 

price  of   dollars  per  day;  that  the  same  had  been 

performed  in  and  between  the  ....  day  of ,  and  the 

....  day  of ,  in  the  year  19. .,  and  that  the  amount 

due  to  the  plaintiff  was  the  sum  of dollars,  and  that 

the  plaintiff  claimed  the  lien  therefor  given  by  Chapter  143 
of  the  Wisconsin  Statutes  for  the  year  1913,  and  the  acts 
amendatory  thereof;  and  that  such  notice  was  given  by 
delivering  the  same  to  said  defendant  [owner]  personally 
and  leaving  the  same  with  him  [or  by  filing  the  said  notice 
in  the  office  of  the  clerk  of  the  circuit  court  of  said  county 

of and  that  neither  said  (owner)  nor  his  agent  could 

be  found  in  said  county]. 

VII.  That  thereafter  and  on  the    ....   day  of   , 

19.  .,  and  within  six  months  from  the  date  of  the  last  charge 
for  performing  said  work  and  labor,  the  plaintiff  duly  filed 
as  required  by  law,  his  claim  for  a  lien  upon  said  building  and 
said  lot  above  described,  in  the  office  of  the  clerk  of  the  circuit 

court   of    county,    containing   a   statement   of   the 

contract  and  demand  upon  which  it  is  founded,  and  the 
name  of  the  person  against  whom  the  demand  is  claimed, 
the  name  of  this  claimant,  the  last  date  of  the  performance  of 
labor,  as  above  stated,  a  description  of  the  property  affected 
thereby,  a  statement  of  the  amount  claimed,  and  all  other 
material  facts  in  relation  thereto,  a  copy  of  which  claim  is 


Forms  1614,  1615.]  1066  [Chapler  LXVIII. 

attached  hereto  and  made  part  of  this  complaint,  and  marked 
Exhibit  A;  and  that  one  year  has  not  elapsed  since  the  date 
of  the  last  charge  for  work  and  labor  as  aforesaid. 

VIII.     That  no  other  claims  for  liens  on  said  premises 

have  been  filed  [or  allege  the  filing  of  other  claims  as  in  allegation 

VI  of  Form  1611.] 

IX  and  X.     [As  in  allegations  VII  and  VIII  of  Form  1611.] 

WHEREFORE  [demand  for  judgment  as  in  Form  1611.] 

1614.  By  several  employees  against  principal  contractor 

and  owner  (V7is.  Stats.  1913  sec.  3321). 

I,  II  and  III.     [As  in  Form  1613.] 

IV.  That  on  or  about  the   ....   day  of   ,  19.., 

the  plaintiffs  were  severally  employed  by  the  defendant 
[principal  contractor]  to  perform  work  and  labor  in  and 
about  the  construction  of  said  building,  and  that  each  of 
said  plaintiffs  did  thereafter  perform  such  labor  as  herein- 
after particularly  alleged,  and  that  the  facts  relative  to 
the  claim  of  the  plaintiff  A. . . .  B . . . .  are  as  follows: 

V.  [Here  state  facts  as  to  claim  of  A . . . .  B as  in 

allegations  IV,  V,  VI  and  VII  of  Form  1613.] 

VI.  That  the  facts  relative  to  the  claim  of  the  plaintiff 
C . . . .  D . . . .  are  as  follows  [state  the  facts,  as  in  case  of 
A....B....] 

VII.  [Follow  allegations  VIII,  IX  and  X  of  Form  1613.] 

VIII.  That  the  allegations  of  this  complaint  relative  to 
each  plaintiff's  claim  and  cause  of  action  herein  are  made  by 
him  upon  his  personal  knowledge;  and  as  to  the  other 
allegations  thereof,  he  makes  the  same  upon  information 
and  belief. 

WHEREFORE,  etc.  [as  in  Form  1611.] 
[To  be  verified  by  all  plaintiffs,  as  they  are  not  joined  in 
interest.] 

1615.  Allegations  of  assignment  of  lien   (Wis.  Stats. 

1913  sec.  3316). 

That  the  said  [original  claimant]  on  or  about  the  ....  day 

of 19 . .,  and  before  the  commencement  of  this  action, 

duly  assigned  and'  transferred  to  the  plaintiff  all  his  right, 
title  and  interest  in  or  to  the  said  claim  for  the  said  work, 
labor  and  materials,  and  in  and  to  the  said  lien  upon  said 


Chapter  LXVIIL]  1067  [Form  1616. 

premises;  and  the  said  plaintiff  now  is  the  lawful  owner  and 
holder  thereof. 

That  on  the  ....  day  of ,  19 .  .,  and  within  fifteen 

days  after  said  assignment  was  made,  this  plaintiff  gave  to 
said  defendant  [owner]  notice  in  writing  of  such  assignment, 
by  serving  such  notice  in  writing,  together  with  a  copy  of 
such  assignment  on  him  personally  on  that  day,  and  leaving 
the  same  with  him. 

1616.  For  foreclosure  of  mechanic's  lien;  contractor 
against  owner,  general  form  (Minn.  Gen.  Stats. 
1913  sec.  7028). 

I.  That  the  plaintiff  is  and  was  at  the  dates  hereinafter 
mentioned  a  contractor  and  builder,  and  that  on  or  about 

the    ....    day   of    ,    19..,    plaintiff   and    defendant 

[owner]  entered  into  a  contract  whereby  the  plaintiff  agreed 
to  construct  a  dwelling  house  for  said  defendant  upon  the 
premises  hereinafter  described  and  furnish  all  materials 
therefor,  and  the  defendant  [owner]  agreed  to  pay  plaintiff 

upon  completion  thereof  the  sum  of dollars  [a  copy 

of  which  agreement  is  hereto  attached,  made  part  of  this 
complaint,  and  marked  Exhibit  A]. 

II.  That  the  plaintiff  has  constructed  said  dwelling 
house  in  accordance  with  said  contract,  and  has  duly  per- 
formed all  the  conditions  of  said  contract  on  his  part  to  be 
performed. 

III.  That  the  premises  upon  which  said  dwelling  house 
was  built  by  the  plaintiff  under  said  contract  are  described 
as  follows  [insert  accurate  description]. 

IV.  That  at  the  time  of  the  making  of  said  contract 
the  defendant  [owner]  was  and  still  is  the  owner  in  fee  of 
said  premises. 

V.  That  the  defendant  [owner]  has  failed  and  neglected 
to  pay  the  plaintiff  any  part  of  the  contract  price  of  said 

dwelling  house,  except  the  sum  of dollars  paid  on  the 

....  day  of ,  19. .,  and  that  there  is  now  due  and 

owing  the  plaintiff  from  the  defendant  the  sum  of 

dollars  with  interest  from ,  19 . . 

VI.  That  the  plaintiff  began  to  furnish  materials  and 
perform  labor  in  the  erection  and  construction  of  said 
dwelling  house  under  the  terms  of  said  agreement  on  the 


Form  1617.]  1068  [Chapter  LXVIII. 

....  day  of ,  19. .,  and  thereafter  continued  to  per- 
form labor  and  furnish  materials  therefor  until  and  including 

the   ....  day  of ,  19. .,  on  which  day  said  building 

was  completed,  and  that  a  true  bill  of  particulars  of  all 
of  said  materials  and  labor  is  hereto  attached,  made  part 
of  this  complaint,  and  marked  Exhibit  A. 

VII.  That  on  the  ....  day  of ,  19. .,  and  within 

ninety  days  after  the  last  item  of  said  labor  and  materials 
was  so  performed,  furnished  and  delivered,  the  plaintiff  filed 
for  record,  in  the  office  of  the  register  of  deeds  in  and  for  the 
county  of state  of  Minnesota,  a  verified  lien  state- 
ment, a  copy  of  which  is  hereto  attached,  marked  Exhibit 
B,  and  made  part  of  this  complaint. 

VIII.  That  the  defendants  W X and  Y 

Z . .  . .  have  lien  claims  of  record  upon  said  premises  for 
materials  furnished  for  or  labor  performed  upon  said  dwelling 
house. 

WHEREFORE  plaintiff  demands  judgment  against  the 

defendant  [owner]  for  the  sum  of dollars,  with  interest 

thereon  from  the  ....  day  of ,  19. .,  and  adjudging 

the  same  a  lien  upon  said  premises;  also  determining  and 
adjudging  the  amount  and  validity  of  the  lien  claims  of 
defendants  [other  lien  claimants]  and  adjudging  and  directing 
a  sale  of  said  premises  and  the  application  of  the  proceeds 
thereof  to  the  payment  of  the  claims  herein  adjudged  liens 
thereon,  and  the  costs  and  disbursements  of  this  action; 
and  for  such  further  relief  as  may  be  just  and  equitable. 

1617.    The  same,  by  employee  of  principal  contractor 
(Minnesota). 

I.  That  on  or  about  the  ....  day  of ,  19.  .,  the 

defendants  [principal  contractor  and  owner]  entered  into  a 
contract  whereby  [allege  contract  as  in  allegation  I  of  Form 
1616]. 

II.  That  between  and  including  the  ....  day  of , 

19. .,  and  the  ....  day  of ,  19. .,  the  plaintiff,  at  the 

special  instance  and  request  of  the  defendant  [principal  con- 
tractor] and  upon  his  promise  to  pay  therefor  the  sum  of 

dollars  per  day  [or  its  reasonable  value]  performed 

for  the  said  defendant  [principal  contractor]  work,  labor  and 
services  in  and  about  the  erection  and  construction  of  said 


Chapter  LXVIII.]  1069  [Form  1618. 

building,  and  in  accordance  with  the  said  agreement  between 
the  defendants  [principal  contractor  and  owner]  the  nature, 
amount  and  value  of  which  are  specifically  set  forth  in  the 
bill  of  particulars  attached  hereto  and  made  part  of  this 
complaint,  and  marked  Exhibit  A. 

III.  That  the  amount  of  the  said  work,  labor  and  services 
so  performed  by  plaintiff  [or,  the  reasonable  value  of  said 

work,  labor  and  services]  is  the  sum  of   dollars,  no 

part  of  which  sum  has  been  paid  except  the  sum  of 

dollars. 

IV.  That  said  work,  labor  and  services  were  performed 
in  and  about  the  erection  and  construction  of  the  said 
dwelling  house  upon  the  following  described  premises 
[insert  description]  and  that  at  the  time  the  said  work,  labor 
and  services  were  performed  the  said  [owner]  was  and  still  is 
the  owner  in  fee  of  said  premises. 

V  and  VI.  [As  in  allegations  VII  and  VIII  of  last  preced- 
ing form.] 

WHEREFORE  [demand  for  Judgment  as  in  last  preceding 
form.] 

1618.    The  same,  for  materials  furnished  to  owner  (Min- 
nesota). 

I.  That  on  and  between  the  ....  day  of ,  19.  ., 

and  the   ....   day  of   ,   19.  .,  the  plaintifT  sold  and 

delivered  to  the  defendant  certain  building  materials, 
the  nature,  quality  and  value  of  which  are  specifically  set 
forth  in  the  bill  of  particulars  hereto  attached,  marked 
Exhibit  A,  and  made  a  part  of  this  complaint. 

II.  That  said  materials  were  reasonably  worth   

dollars  [or,  that  said  defendant  then  promised  to  pay  for 

the  same dollars  on  or  before  the  ....  day  of , 

19..] 

III.  That  no  part  thereof  has  been  paid  [except,  etc.] 

IV.  That  said  materials  were  so  sold  and  delivered  to  be 
used,  and  were  in  fact  used  in  the  construction  of  a  dwelling 
house  upon  the  following  described  premises  [insert  descrip- 
tion] and  that  at  the  time  said  materials  were  so  sold  and 
delivered  the  defendant  was  and  still  is  the  owner  in  fee 
of  the  said  premises. 

V  and  VI.     [As  in  allegations  VII  and  VIII  of  Form  1616.] 
WHEREFORE  [demand  for  judgment  as  inform  1616.] 


Form  1619.]  1070  [Chapter  LXVIII. 

1619.  For  foreclosure  of  mechanic's  lien,  general  form 
(Iowa  Ann.  Code  1897  sec.  3089  et  seq.). 

[In  Iowa  either  of  the  last  preceding  forms  given  for  use  in 
Minnesota  may  be  substantially  followed,  substituting  for  the 
allegation  as  to  the  filing  of  the  claim  the  following]: 

That  on  the day  of 19.  .,  the  plaintiff  duly 

filed  in  the  office  of  the  clerk  of  the  district  court  of 

county,  Iowa,  a  duly  verified  statement  and  account  of  the 
said  demand  due  to  the  plaintiff,  after  allowing  all  credits 
thereon,  which  statement  set  forth  the  time  when  such 
materials  were  furnished  [or,  such  labor  was  performed,  or 
both]  and  when  the  same  was  completed  and  contained  a 
correct  description  of  the  said  real  estate  to  be  charged 
with  such  lien,  a  true  copy  of  which  verified  statement  is 
hereto  attached,  made  part  of  this  petition,  and  marked 
Exhibit  A  [add  if  the  plaintiff  be  a  subcontractor]  and  that 

on  the day  of ,  19. .,  the  plaintiff  duly  served 

upon  the  defendant  [owner]  [or,  upon  L....  M....  the 
agent  of  said  owner]  a  written  notice  subscribed  by  the 
plaintiff,  of  the  filing  of  the  plaintiff's  said  claim  and  state- 
ment as  aforesaid,  by  delivering  such  notice  to  and  leaving 
the  same  with  the  said  [owner  or  agent],  a  true  copy  of 
which  notice  so  served  is  attached  hereto,  and  made  a  part 
of  this  petition,  and  marked  Exhibit  B. 

[Allege  assignment,  if  any,  as  in  Form  1615.] 

WHEREFORE  the  plaintiff  demands  judgment  against 

said  defendant  [owner]  for  the  said  sum  of   dollars 

with  interest  and  costs,  and  prays  that  his  mechanic's  lien 
be  established  and  enforced  against  the  building  and  land 
aforesaid,  as  provided  by  law;  that  the  lien,  if  any,  of  each 
and  all  of  the  defendants  in  this  action  to  the  real  estate 
above  described  be  decreed  to  be  junior  and  inferior  to  the 
plaintiff's  said  lien  thereon,  and  that  the  equity  of  redemption 
of  each  and  all  of  said  defendants  be  forever  barred  and 
foreclosed,  and  that  special  execution  issue  for  the  sale  of 
said  premises,  or  so  much  thereof  as  may  be  necessary  to 
satisfy  said  judgment,  interests  and  costs,  and  for  such 
other  relief  as  may  be  equitable  in  the  premises. 


Chapter  LXVIIL]  1071  [Forms  1620,  1621. 

1620.  For  foreclosure  of  mechanic's  lien,  general  form 

(N.   Dak.    Codes    1905    sec.    6237   et   seq.;    S. 
Dak.  C.  e.  P.  1908,  sec  696  et  seq.). 

[In  the  states  of  North  and  South  Dakota  the  forms  pre- 
viously given  in  this  chapter  for  use  in  Minnesota  may  be 
substantially  followed,  substituting  for  the  allegation  of  the 
filing  of  the  statement  of  lien  the  followint,  ] : 

That  on  the  ....  day  of ,  19 .  .,  and  within  ninety 

days  [in  South  Dakota,  four  months]  after  the  furnishing  of 
all  of  the  said  materials  [or  the  performing  of  said  labor, 
or  both]  the  plaintiff  duly  filed  in  the  office  of  the  clerk  of 

the court  of  the  county  of in  said  state  a  just 

and  true  account  of  the  demand  so  due  to  the  said  plaintiff, 
after  allowing  all  credits  thereon,  which  account  contained  a 
correct  description  of  the  said  real  estate  to  be  charged  with 
such  lien,  and  was  duly  verified  by  the  affidavit  of  this  plaintiff. 

WHEREFORE  the  plaintiff  dem^ands  judgment  against 
the  defendant  [owner  or  principal  contractor]  for  the  sum  of 

dollars,  with  interest  from ,  19 .  .,  and  for  the 

costs  of  filing  his  said  claim,  as  well  as  the  costs  of  this 
action,  and  that  the  same,  be  adjudged  to  be  a  lien  upon  the 
said  real  estate  and  dwelling  house  herein  described,  and  upon 
all  the  right,  title  and  interest  of  the  said  [owner]  therein; 
that  the  rights  and  interests  of  the  defendants  [all  other 
lien  claimants  or  incumbrancers]  be  ascertained  and  deter- 
mined [and  that  the  same  be  adjudged  to  be  subject  to  the 
plaintiff's  said  lien];  that  the  said  premises  and  dwelling 
house  be  adjudged  to  be  sold,  and  that  the  proceeds  be 
applied  to  the  payment  of  the  plaintiff's  said  demand  and 
costs,  as  well  as  to  the  payment  of  the  other  liens  which 
may  be  ascertained  and  adjudged  herein  [in  North  Dakota 
omit  prayer  for  personal  judgment  at  beginning,  and  insert: 
and  that  the  plaintiff  have  judgment  for  any  deficiency 
which  may  arise  upon  such  sale  against  the  defendant, 
the  owner];  and  that  the  plaintiff  have  such  other  and  further 
relief  as  may  be  just  and  equitable. 

1621.  For  foreclosure   of  mechanic's   lien,   contractor 

against  owner,  general  form  (Neb.  R.  S.  1913 
sec.  3823  et  seq.). 

I.    That  on  or  about  the  ....  day  of ,  19. .,  the 

plaintiff  entered  into  an  oral  [or  written]  contract  with  the 


Form  1622.]  1072  [Chapter  LXVIII. 

defendant  [owner]  to  furnish  him  fifty  thousand  brick,  at 

dollars  per  thousand,  for  the  construction  and  erection 

of  a  dwelling  house,  a  copy  of  which  contract  is  attached 
hereto,  made  part  of  this  petition,  and  marked  Exhibit  A. 

II.  That  the  plaintifT  furnished  and  delivered  said  brick 
to  the  defendant  for  the  erection  of  said  house,   on  and 

between  the  ....  day  of ,  19. .,  and  the  ....  day  of 

,   19..,  and  that  there  is  now  due  to  the  plaintiff 

therefor  the  sum  of dollars,  no  part  of  which  sum 

has  been  paid. 

III.  That  the  defendant  [owner]  at  the  time  the  plaintiff 
furnished  said  brick  was  the  owner  in  fee  of  said  lot.  [Or 
otherwise  state  defendant's  title.] 

IV.  That  on  the  ....  day  of ,  19 .  . ,  and  within 

four  months  from  the  time  of  furnishing  said  materials,  the 
plaintifT  made  an  account  in  writing  of  the  items  of  such 
materials  furnished  the  defendant  under  said  contract, 
and  after  making  oath  thereto  as  required  by  law,  filed  the 

same  in  the  office  of  the  register  of  deeds  of county, 

and  claiming  a  mechanic's  lien  therefor  upon  said  lot  and 
the  building  thereon. 

WHEREFORE  the  plaintiff  demands  judgment  against 

the  defendant  [owner]  for  the  sum  of dollars,  with 

interest  from  the  ....  day  of ,  19. .,  and  costs  of  suit, 

and  that  said  premises  may  be  sold,  and  the  proceeds  thereof 
applied  to  the  payment  of  said  judgment,  interest  and  costs, 
and  for  such  other  and  further  relief  as  may  be  just  and 
equitable. 

1622.    The  same,  where  subsequent  lien-holders  or  in- 
cumbrancers are  joined  (Nebraska). 

[Insert  in  the  preceding  form   the  following]: 

V.  Upon  information  and  belief,  that  the  defendant 
[other  lien  claimant]  has  or  claims  to  have  a  mechanic's  lien 

upon  said  premises  for  the  sum  of dollars,  filed  on 

the  ....  day  of ,  19.  .,  and  that  on  the  ....  day  of 

,  19.  .,  the  said  defendant  [owner]  made  and  executed 

a  mortgage  upon  said  premises  to  the  defendant  [subsequent 

mortgagee]  to  secure  the  payment  of dollars,  which 

mortgage  is  subsequent  and  subject  to  the  lien  of  the  plaintifT. 

[Add  to  the  prayer  for  judgment]:  that  the  interests  or  liens, 


Chapter  LXVIIL]  1073  [Form  1623. 

if  any,  of  the  defendants  [subsequent  lien-holders  or  mort- 
gagors] be  adjudged  to  be  subsequent  and  subject  to  the  lien 
of  the  plaintiff,  etc. 

1623.    By  subcontractor  against  principal  contractor  and 
owner  (Nebraska). 

I.  That  on  the  ....  day  of ,  19. .,  the  defendant 

[owner]  was  the  owner  of  certain  real  estate  described  as  fol- 
lows [describe  in  full]  in county,  and  on  said  day  said 

[owner]  entered  into  a  contract  with  defendant  [principal  con- 
tractor] to  erect  a  building  on  said  land,  a  copy  of  which  con- 
tract is  attached  hereto  and  marked  Exhibit  A  [or  state  con- 
tract according  to  legal  effect]. 

II.  That  on  the  ....  day  of ,  19. .,  the  said  [prin- 
cipal contractor]  employed  the  plaintiff  to  work  on  said  build- 
ing for  the  sum  of dollars  per  day,  and  he  thereupon 

performed  ....  days'  labor  thereon,  in  pursuance  of  said  em- 
ployment, the  last  c'ay  of  said  labor  being  the day  of 

, ,  19.. 

in     That  on  the  ....  day  of 19. .,  and  within 

sixty  days  from  the  date  of  the  performance  of  said  labor,the 
plaintiff  notified  said  [owner]  of  the  amount  owing  to  him  by 
said  [principal  contractor]  and  requested  him  to  pay  the  same, 
which  he  has  failed  to  do.  That  thereupon  on  said  day  the 
plaintiff  made  an  account  in  writing  of  the  items  of  said  labor 
performed  for  said  [principal  contractor]  on  said  building  un- 
der said  contract,  and  after  making  oath  thereto,  as  required 
by  law,  filed  the  same  in  the  office  of  the  register  of  deeds 

of county,  claiming  a  mechanic's  lien  therefor  upon 

said  lot  and  the  building  thereon. 

IV.  That  no  part  of  said  debt  has  been  paid  either  by  the 
said  [principal  contractor]  or  the  said  [owner]  and  there  is 
now  due  and  owing  by  said  defendants  to  the  plaintiff  the 

sum  of dollars,  with  interest  from  the   ....  day 

of ,19.. 

WHEREFORE  the  plaintiff  demands  judgment  against 

the  defendants  for  the  sum  of dollars  with  interest 

from  the  ....  day  of ,  19 .  .,  and  costs  of  suit,  and  that 

said  premises  may  be  sold  and  the  proceeds  applied  to  the 
payment  of  said  judgment,  interests  and  costs;  and  for  such 
other  relief  as  may  be  just  and  equitable. 
(38 


Form  1624.]  1074  [Chapter  LXVIII. 

1624.    Allegation  of  fraudulent  lien. 

[Insert  in  any  of  the  foregoing  forms,  if  the  facts  warrant, 
and  it  is  desired  to  obtain  a  Judgment  setting  aside  the  fraudu- 
lent lien]: 

That  on  the day  of ,  19 . . ,  the  defendant  [fraud- 
ulent lien-holder]  at  the  instance  and  request  of  the  defendant 
[owner]  and  with  intent  to  defraud  the  plaintiff,  filed  a  claim 
for  lien  against  said  [owner]  and  upon  said  premises   for  the 

sum  of dollars.    That  said  claim  is  fraudulent  and 

void,  and  that  said  defendant  [owner]  is  not  indebted  to  said 
E . . . .  F . . . .  in  any  way  whatever  for  labor,  skill  or  materi- 
als furnished  by  him  for  the  erection  [or  repair]  of  said  dwell- 
ing house,  and  said  [fraudulent  lien-holder]  has  no  valid  lien 
thereon  and  that  said  lien,  if  permitted  to  remain  in  force, 
will  greatly  diminish  or  wholly  defeat  the  lien  of  the  plaintiff. 

[Add  to  demand  for  judgment]:  That  said  apparent  lien  of 

said  defendant  E F . . . .  may  be  declared  fraudulent  and 

void,  and  set  aside,  etc. 


CHAPTER  LXIX. 


COMPLAINTS  FOR  PARTITION. 


1625.  Complaint  for  partition,  gen- 

eral form. 

1626.  Allegation  of  unknown  own- 

ers. 

1627.  Allegation  of  dower  interest. 

1628.  Allegation  of  judgment  lien 

on  undivided  share. 

1629.  Allegation  of  mortgage  lien 

on  undivided  share. 


1630.  Allegation  of  receipt  of  rents 

and  profits  by  co-tenants. 

1631.  Complaint  for  partition,  set- 

ting forth  source  of  title. 

1632.  Petition  for  partition.  (Iowa.) 

1633.  Complaint  in  action  for  par- 

tition  of   a  water  power. 
(Wisconsin.) 

1634.  Petition    in    partition    pro- 

ceedings.    (Iowa.) 


The  action  of  partition  is  statutory  and  the  statutes  of 
the  various  states  differ  somewhat  in  details.  Generally, 
however,  it  may  be  said  that  partition  actions  are  simply 
proceedings  of  an  equitable  nature  brought  by  one  joint 
tenant  in  common  who  is  in  possession,  actual  or  construc- 
tive, of  lands,  against  his  co-tenants  to  obtain  division  of 
the  lands  or  a  sale  and  division  of  the  proceeds  in  case  the 
property  can  not  be  divided  without  great  prejudice  to  the 
interests  of  the  owners.  All  parties  having  interests  or 
liens  upon  the  premises,  or  upon  the  share  of  any  tenant, 
should  be  made  parties  to  the  action.  The  complaint 
should  describe  the  lands  sought  to  be  divided,  and  state 
specifically  the  interest  which  each  party  plaintiff  and 
defendant  has  in  them,  and  pray  for  partition.  It  is  not 
an  action  in  which  disputed  titles  are  to  be  settled,  and  if 
it  appear  that  title  is  in  dispute  between  plaintiff  and  de- 
fendant, the  action  will  either  be  dismissed  without  preju- 
dice, or  stayed  until  the  plaintiff  establish  his  title  at  law. 
Deery  v.  McClintock,  31  Wis.  195;  Seymour  v.  Ricketts, 
21Neb.  240;31N.  W.  781. 

In  some  states  it  seems  that  the  action  may  be  brought 
by  any  owner  or  claimant  of  any  real  estate  or  of  any  interest 
therein.  Ariz.  R.  S.  1913  sec.  1567;  Ark.  Dig.  of  Stats. 
1904  sec.  5770;  Tex.  Civ.  Stats.  Ann.  1913  art.  6096. 


Form  1625.]  1076  [Chapter  LXIX. 

In  Wisconsin  such  action  may  be  maintained  by  any 
person  who  has  any  estate  in  the  lands  of  which  partition 
is  sought,  and  whenever  any  person  shall  have  a  life  estate 
and  be  in  possession  of  real  estate,  any  partition  action 
brought  by  or  against  any  person  having  an  estate  in  re- 
mainder or  reversion  shall  be  subject  to  such  life  estate. 
Wis.  Stats.  1913  sec.  3101. 

In  Minnesota  and  Oregon  it  seems  that  the  action  may 
be  brought  not  only  by  a  tenant  in  poss.ession  but  also  by 
a  remainderman  not  in  possession  or  entitled  to  present 
possession.  Minn.  Gen.  Stats.  1913  sec.  8028;  Cook  v. 
Webb,  19  Minn.  167;  Ore.  Laws,  1910  sec.  435. 

The  statutes  of  many  states  in  terms  authorize  the  action 
to  be  brought  only  by  tenants  in  possession:  Cal.  C.  C.  P. 
1906  sec.  752;  Colo.  Stats.  Ann.  1911  sec.  4745;  Idaho 
Rev.  Codes  1908  sec.  4560;  Montana  Rev.  Codes  1907 
sec.  6883;  North  Dakota  Rev.  Codes  1905,  sec.  7404;  S. 
Dak.  C.  C.  P.  1908  sec.  587;  Utah  Comp.  Laws  1907  sec. 
3522;  Wash.  Rem.  and  Bal.  Code  1910  sec.  838;  Wyo. 
Comp.  Stats.  1910  sec.  4941.  In  Iowa,  Kansas,  Nebraska 
and  Oklahoma  the  action  is  governed  by  the  following 
statutes:  Iowa  Ann.  Code  1897  sees.  4240  et  seq.;  Kans. 
Gen.  Stats.  1909  sec.  6230,  et  seq,;  Nebraska  R.  S.  1913 
sec.  8285  et  seq.;  Okla.  Comp.  Laws  1909  sec.  6135  et  seq. 


1625.    Complaint  for  partition,  general  form. 

I.  That  the  plaintiff  and  the  defendants,  own  and  possess 
as  joint  tenants  [or,  as  tenants  in  common]  the  following 
described  premises  [particular  description  of  the  premises]; 
and  that  the  plaintiff  is  desirous  of  a  partition  of  the  same. 

II.  That  the  plaintiff  has  an  estate  of  inheritance  therein 
of  one  undivided  one-third  interest  in  the  fee  thereof  [or 
other  estate]. 

III.  That  each  of  the  defendants  [co-tenants]  have  a 
similar  estate  of  one  undivided  one-third  interest  in  the 
same  [or  otherwise]. 

IV.  That  the  above  described  lands  are  all  the  lands  in 
this  state  in  which  the  parties  to  this  action  own  any  estate 
either  jointly  or  in  common,  and  that  as  plaintiff  is  informed 


Chapter  LXIX.]  1077  [Forms  1626-1628. 

and  believes,  no  other  persons  have  any  interest  or  estate 
in  the  lands  hereinbefore  described.^ 

WHEREFORE  the  plaintiff  demands  judgment  for  a 
partition  of  the  said  premises,  according  to  the  respective 
rights  of  the  parties  interested  therein,  and  for  a  sale  thereof, 
if  it  shall  appear  that  a  partition  thereof  can  not  be  made 
without  great  prejudice  to  the  owners  thereof,  and  that 
the  proceeds  of  such  sale  may  be  brought  into  court  and 
divided  among  the  parties,  according  to  their  respective 
rights  and  interests,  and  for  the  costs  of  this  action;  and 
for  such  further  relief  as  may  be  equitable. 

1626.  Allegation  of  unknown  owners. 

That  one  M . . . .  N . . . .  in  his  lifetime,  had  an  estate  of 
inheritance  therein  of  one  undivided  one-fourth  interest 
in  the  fee  [or  otherwise]  and  that  the  said  M . . . .   N .  . . . 

several  years  since  removed  from  this  state  to ;  that 

he  subsequently  married  and  had  children,  some  of  whom 
are  now  living;  but  their  names  and  places  of  residence 
are  wholly  unknown  to  the  plaintifT,  and  although  he  has 
made  diligent  inquiries  for  that  purpose,  he  cannot  ascer- 
tain the  same,  or  either  of  them.  That  said  M . .  . .  N .  . . . 
and  his  said  wife  are  now  dead;  and  that  the  children  and 
heirs,  or  the  heirs  at  law  of  any  who  may  be  dead,  are 
collectively  entitled  to  the  undivided  one-fourth  part  of 
said  premises  to  which  the  said  M . . . .  N . . . .  would  be 
entitled,  if  living. 

1627.  Allegation  of  dower  interest. 

That  the  defendant  [dowress]  is  the  widow  of  one  X . . . . 
Y the  father  of  the  said  [co-tenants]  from  whom  they  in- 
herited said  premises;  and,  as  such  widow,  claims  a  right  of 
dower  which  has  not  been  admeasured  in  [the  following  de- 
scribed part  of]  said  premises. 

1628.  Allegation  of  judgment  lien  on  undivided  share. 

That  the  defendant  [Judgment  creditor]  holds  a  judgment  re- 
covered by  him  [or,  by  one  M .  . . .  N . . . .  and  thereafter  duly 

■By  Wis.  Stats.  1913  sec.  3102,  parties  either  of  them  may  have  the 
if  the  complaint  does  not  ask  par-  complaint  so  amended  as  to  affect 
tition  of  all  the  lands  owned  by  the      all  the  lands  so  owned. 


Forms  1629-1631.]  1078  [Chapter  LXIX. 

assigned  to  him],  duly  given  in  the court  [or,  in  an 

action  before  0 . . .  .  P. . . .  justice  of  the  peace  in  and  for  the 

town  of ]  on  or  about  the  ....  day  of ,  19.  ., 

against  [one  or  more  of  the  co-tenants]  for  the  sum  of 

dollars;  which  judgment  was,  on  the   ....   day  of   , 

19. .,  docketed  in  said  county  of  [county  where  the  premises  are 
situated]  and  remains  unpaid  and  unsatisfied  of  record. 

1629.  Allegation  of  mortgage  lien  on  undivided  share. 

That  the  defendant  [mortgagee]  holds  a  mortgage  upon  the 
said  interest  of  [one  of  the  co-tenants]  for dollars,  pay- 
able on  the  ....  day  of ,  19 . .,  with  interest  from  the 

....  day  of ,  19.. 

1630.  Allegation  of  receipt  of  rents  and  profits  by  co-ten- 

ants. 

That  during  the  time  this  plaintiff  and  said  defendants 
have  owned  the  said  premises  jointly  [or,  in  common]  to-wit, 

since  the  ....  day  of  ,  19. .,  the  defendant  E. . . . 

F . . . .    has  received   all   of  the  rents  and   profits   thereof, 

amounting  to  the  sum  of dollars,  as  the  plaintiff  is 

informed  and  believes,  and  that  on  the  ....  day  of 

19..,  the  plaintiff  requested  the  said  E....  F....  to  ac- 
count to  him  [this  plaintiff]  for  the  rents  and  profits  so  re- 
ceived and  pay  the  said  plaintiff  his  proper  share  thereof, 
which  the  said  E. . . .  F. . . .  refused  to  do. 

[Add  to  prayer  for  judgment  in  first  form  in  this  chapter]: 
and  that  the  defendant  E. . .  .  F. . . .  be  required  to  account 
for  and  pay  over  to  the  plaintiff  the  rents  and  profits  afore- 
said, so  wrongfully  retained  by  him,  etc. 

1631.  Complaint  for  partition,  setting  forth  sources  of 

title. 

I.  That  on  or  about  the  ....  day  of ,  19. .,  C. . . . 

B . . . . ,  being  the  owner  in  fee  of  the  real  property  hereinafter 
described,  died  intestate  as  to  the  same,  which  real  property 
is  described  as  follows  [give  description]. 

II.  That  said  C...  B....  left  W....  B....,  his 
widow,  one  of  the  defendants,  •  who  is  entitled  to  dower  in 
said  premises. 


Chapter  LXIX.]  1079  [Form  1631. 

III.  That  subject  to  said  dower  the  premises  descended  to 
the  following  named  persons,  the  only  heirs  of  the  said 
deceased: 

(1)  The  plaintiff,  A. . . .  B ,  who  is  a  son  of  said 

C.  . . .   B. . .  .   deceased; 

(2)  The  defendant  E B ,  a  daughter  of  the 

said  C...   B....,  deceased,  and  wife  of  one 
L B of county,  in  the  state  of 


(3)  The  defendants  F. . . .  M. . . .  and  G. . . .  M. . . ., 

minor  children  of  one  F....  B....,  a  daughter 

of  said  G B ,  deceased.   The  said  F 

B . . . .  intermarried  with  the  defendant  H 

M....,  and  afterwards  died  intestate,  leaving 
issue  of  said  marriage  F . . . .  M . . . .  and  G . . .  . 
M . . . . ,  her  only  children  and  heirs,  who  reside 

in  the  county  of   and  for  whom  their 

father  H . .  . .    M . . . . ,   who   resides  in    

county,  has  been  duly  appointed  guardian  by 

the court  of  said   county.     The 

said  H . . . .  M . . . .  is  tenant  by  the  curtesy  of 
the  estate  of  said  children. 

(4)  G....   B....,   son  and  only  heir  of  one  H.... 

B deceased.    The  said  H . . . .  B . . . .  was  a 

son  of  said  C B ,  deceased.    The  said 

G . . . .  B . . . . ,  after  said  estate  was  cast  upon 
him  by  descent  as  aforesaid,  conveyed  his  es- 
tate in  said  premises,  by  deed  duly  executed,  to 
the   defendant   X . . . .    Y . . . .    who   resides   in 


IV.     The  parties  above  named  have  now  the  following 
undivided  estate  in  said  premises: 

(1)  The  plaintiff,  one  undivided  fourth  in  fee; 

(2)  The  defendant  E B ,  one  undivided  fourth 

in  fee; 

(3)  The  defendants  F. . . .  M. . . .  and  G. . . .  M. . . ., 

each  one  undivided  eighth  in  fee,  subject  to  the 
curtesy  of  their  father,  H .  . .  .   M .  .  .  . 

(4)  The  defendant  X Y ,  one  undivided  fourth 

in  fee. 


Forms  1632,  1633.]  1080  [Chapter  LXIX. 

V.  [Add  such  further  allegations  as  to  liens,  and  Judg- 
ments, or  otherwise,  from  the  forms  previously  given  in  this 
chapter,  as  the  facts  may  call  for.] 

WHEREFORE  [demand  for  judgment  as  inform  1625]. 

1632.  Petition  for  partition  (Iowa). 

[In  Iowa  an  abstract  of  title  must  be  attached  to  the  petition, 
hence  the  following  allegation  should  be  inserted  in  the  fore- 
going forms:] 

The  plaintiff  attaches  to  this  petition  an  abstract  of  the 
title  relied  upon  by  him,  marked  Exhibit  A,  and  made  a  part 
thereof. 

[//  is  the  opinion  of  Mr.  Kinne  that  under  Iowa  Ann.  Code 
1897  sec.  4185  it  is  advisable  to  state  in  the  petition,  when 
there  are  no  parties  under  legal  disability,  that  the  parties  are 
unable  to  agree  upon  a  division  of  the  property.  2  Kinne's 
PI.  Pr.  p.  418.  If  deemed  necessary,  this  fact  may  be  alleged 
as  follows]: 

That  the  several  owners  of  said  lands  are  unable  to  agree 
upon  a  division  thereof. 

1633.  Complaint  in  action  for  partition  of  a  water  power 

(Wis.  Stats.  1913  sec.  3149;  condensed  and 
adapted  from  precedent  sustained  in  Clark  v. 
Stewart,  56  Wis.  154;  14  N.  W.  54). 

I.  That  by  Chapter  ....  of  the  private  and  local  laws  of 
Wisconsin  for  the  year  19.  .,  power  and  authority  was  duly 
given  to  [name  grantees]  to  erect  and  maintain  a  dam  across 

the river,  at  [name  place]  upon  certain  lands  described 

as  follows  [describe  tracts  on  which  dam  rests],  which  lands  were 
th  n  owned  by  [name  owners]. 

II.  That  in  pursuance  of  the  power  so  granted,  a  dam 
with  booms  and  piers  was  erected  at  said  point  in  the  year 
19.  .,  by  means  whereof  a  valuable  water  power  was  created 
which  has  ever  since  been  used  and  enjoyed  as  hereinafter 
set  forth. 

III.  That  subsequently,  by  proper  conveyances  from  said 
original  owners  the  plaintiff  and  defendants  became  the 
owners  in  severalty,  and  entered  into  possession  of  the  tracts 
of  land  upon  which  said  dam  is  constructed,  to-wit:  the 
plaintiff  owns  and  possesses   [here  describe  tract  owned  by 


Chapter  LXIX.]  1081  [Form  1633. 

plaintiff];  the  defendant  C...  D....  owns  and  possesses 
[describe  tract];  and  the  defendant  E....  F....  owns  and 
possesses,  etc. 

IV.  That  by  sufficient  and  proper  conveyances  from  said 
original  grantors  and  their  grantees,  the  plaintiff  and  the 
said  defendants  have  become  the  owners  of  and  are  now  pos- 
sessed of  said  dam  and  of  the  entire  water  power  produced  by 
said  dam,  and  the  rights  and  privileges  granted  by  said  act  of 
the  legislature,  as  follows,  to-wit: 

The  plaintiff  acquired  and  now  possesses  the  right  to  use 
forever  from  said  dam  and  water  power  sufficient  water  to 
drive  one  rotary  saw  and  edger,  one  bull  wheel,  and  to  carry 
off  from  the  pond  the  refuse  floodwood  that  might  accumu- 
late, and  an  equal  pro  rata  right  to  use  the  piers,  booms, 
ponds,  guardlocks,  and  dams,  with  other  mills  then  or  there- 
after erected  [or  otherwise  describe  the  right  according  to  the 
terms  of  the  conveyance]. 

The  defendant  C. . . .  D. . . .  acquired  and  now  possesses 
the  right  [here  describe  his  right  according  to  his  conveyance, 
and  so  proceed  with  each  separate  right]. 

V.  That  the  plaintiff  and  defendants  have  severally 
erected  mills  below  said  dam,  for  the  use  of  said  water  power 
and  privileges,  and  that  since  the  erection  thereof  great 
changes  have  taken  place  in  the  kind  of  water  wheels  used, 
requiring  an  increased  quantity  of  water  to  propel  the  ma- 
chinery; that  the  terms  of  said  grants  to  the  various  parties, 
as  above  set  forth,  do  not  admit  of  accurate  measurement  of 
the  water  which  mac/  be  used  by  each  except  by  actual  trial; 
that  in  times  of  low  water,  in  the  usual  condition  of  the  dams 
and  locks,  there  is  not  sufficient  water  to  run  all  of  said 
mills  to  their  full  capacity;  that  during  the  present  season 
there  has  at  times  been  a  scarcity  of  water;  that  the  mills  of 
said  defendants  C .  .  .  .  D .  .  .  .  and  E .  . . .  F .  .  .  .  are  located 
below  the  mills  of  the  plaintiff  on  said  river;  so  that  when  the 
water  was  low  they  have  drawn  down  the  head  at  the  plain- 
tiff's mill,  thus  making  it  impossible  for  the  plaintiff  to  ob- 
tain water  to  which  he  is  lawfully  entitled  as  hereinbefore  set 
forth,  to  the  great  damage  of  the  plaintiff;  that  said  defend- 
ants [name  them]  insist  upon  their  right  to  run  their  mills 
aforesaid  to  the  full  capacity  thereof  night  and  day,  not- 
withstanding it  may  take  the  plaintiff's  water  away  from 
him,  and  that  they  intend  and  threaten  to  do  so  in  violation 


Form  1634.]  1082  [Chapter  LXIX. 

of  the  plaintiff's  rights  in  the  premises;  nd  that  disagree- 
ments have  arisen  and  still  exist  between  the  plaintiff  and 
said  defendants  respecting  their  rights  in  said  dam  and  said 
water  power  and  respecting  their  obligations  to  repair  said 
dam,  booms  and  piers,  by  reason  of  the  general  terms  used 
in  conveying  their  respective  rights  and  privileges. 

VI.  That  the  said  dams,  piers,  and  booms  connected  with 
said  water  power  are  now  in  need  of  repair  and  improvement; 
that  it  is  essential  to  the  preservation  and  proper  use  of  said 
power  that  the  same  be  repaired  without  delay;  and  that  the 
parties  are  unable  to  agree  as  to  their  respective  obligations 
to  contribute  to  the  expense  of  repairing  said  dam,  and  the 
care  and  management  thereof. 

WHEREFORE  the  plaintiff  demands  that  the  respective 
rights  of  the  said  parties  in  said  water  power  be  determined 
and  adjudged,  and  that  the  actual  quantity  to  which  each  is 
entitled  under  a  given  head  may  be  ascertained  and  adjudged 
in  the  manner  provided  by  law;  that  the  respective  obliga- 
tions of  the  parties  to  contribute  to  the  expense  of  repairs 
and  maintenance  of  said  dam  be  adjudged,  and  that  the  par- 
ties defendant  may  be  restrained  from  using  more  than  their 
just  proportion,  and  from  drawing  down  the  water  of  said 
pond,  or  so  much  water  therefrom  as  to  prevent  the  plaintiff 
from  the  use  and  enjoyment  of  his  due  share  thereof,  and  that 
the  plaintiff  have  such  further  relief  as  may  be  just  and  equit- 
able, and  that  he  recover  the  costs  and  disbursements  of  this 
action. 


1634.    Petition  in  partition  proceedings  (Iowa  Ann.  Code 
1897  sec.  4240etseq.). 

[Title.] 

To  Said  Court: 

For  cause  of  action  the  plaintiff  alleges: 

I.  That  the  parties,  plaintiff  and  defendants,  are  owners  in 
fee  simple  and  in  actual  and  lawful  possession  of  all  the  real 
estate  described  in  a  "Statement"  hereto  annexed,  marked 
"Exhibit  A"  and  made  a  part  of  this  petition;  and  to  which 
reference  is  now  made. 

II.  That  the  respective  parties  in  this  cause,  acquired 
their  title  to  said  lands  from  the  last  prior  owner  thereof  in 


Chapter  LXIX.]  1083  [Form  1634. 

the  manner  briefly  stated  as  follows:  [State  how  titles  were 
acquired.] 

III.  That  all  the  parties  in  this  action  have  attained  their 
legal  majority,  except  the  following  named  persons,  whose 
ages  are  as  follows:  [State  names  and  ages  of  minor  defend- 
ants], and  plaintiff  asks  that  a  guardian  ad  litem  be  appointed 
by  the  court  for  all  minor  defendants  herein,  who  may  ap- 
pear, answer  and  defend  for  them  as  provided  by  law. 

IV.  That  the  respective  shares  and  interests  of  the 
several  owners  and  parties  aforesaid  in  and  to  said  real  estate 
are  as  follows,  to-wit:  [state  interests]. 

V.  Plaintiff  attaches  to  this  petition  "Abstracts  of  Title" 
relied  upon:  showing  from  and  through  whom  the  title  of  the 
parties  herein  to  said  lands  was  obtained  and  how  the  same  is 
formed  and  was  created,  also  giving  the  necessary  dates  of 
conveyances  and  titles  and  the  book  and  page  where  re- 
corded, together  with  a  full  and  true  description  of  all  the 
lands  involved  in  this  action  and  the  relative  share  therein 
of  the  respective  parties  hereto  and  other  facts,  and  where- 
ever  such  title  or  any  portion  thereof  is  not  in  writing,  or 
does  not  appear  of  record,  then  a  full  statement  of  the  facts 
are  set  forth  in  and  upon  said  "Abstracts." 

VI.  Said  "Abstracts"  and  the  statements  annexed  there- 
to, also  show  the  nature  and  extent  of  all  contingent  interests 
in  said  property  and  of  all  charges  and  incumbrances  upon 
or  affecting  said  lands  and  the  names  of  the  persons  holding 
or  claiming  to  hold  such  interests,  liens  or  charges  so  far  as 
the  plaintiff  have  been  able  to  ascertain  the  same.  Said 
"Abstracts  and  Statements"  are  made  part  of  this  petition 
and  reference  is  now  made  thereto  for  full  particulars. 

VII.  Before  making  an  order  of  sale  or  partition  herein, 
the  court  is  asked,  [if  deemed  in  its  opinion  necessary]  to 
refer  to  the  clerk  of  this  court,  or  to  a  referee  to  examine  and 
report  the  nature  and  amount  of  all  general  encumbrances 
by  way  of  mortgage,  judgment,  contingent  interest,  lien,  or 
otherwise,  upon  any  portion  of  said  real  estate,  and  that 
thereupon  such  proceedings  be  had  in  the  premises  and  in 
relation  thereto  as  are  provided  by  law. 

VIII.  Plaintiff  alleges  the  following  good  and  sufficient 
reasons  to  the  court  in  order  that  it  may  direct  the  referees 
to  allot  particular  portions  of  said  land  to  the  particular 
individuals  herein  named  in  making  up  their  distributive 


Form  1634.]  1084  [Chapter  LXIX. 

shares  in  said  property,  to-wit:  [Give  reasons  for  allotment 
asked.] 

IX.  Plaintiff  states  that  when  partition  can  be  conven- 
iently made  of  part  of  said  premises,  but  not  of  all  thereof, 
then  that  partition  be  made  of  the  portion  susceptible  of 
partition,  and  that  the  other  portion  of  said  lands  be  sold  as 
by  law  provided. 

WHEREFORE  plaintiff  prays  for  the  judgments,  and 
order  of  this  court  as  follows,  to-wit:  (1)  settling  and  con- 
firming in  the  respective  parties  herein,  both  plaintiffs  and 
defendants,  their  aforesaid  relative  shares  in  and  titles  to  all 
the  real  estate  in  this  action  described,  and  making  the  same 
firm  and  effectual  forever  in  said  parties,  their  heirs,  suc- 
cessors and  assigns;  (2)  ordering  and  decreeing  partition 
to  be  made  accordingly  of  all  of  said  lands  between  said 
parties  [or  of  such  portion  of  said  premises  as  may  be  sus- 
ceptible of  proper  division]  and  that  thereupon  this  court 
appoint  and  commission  referees  to  make  partition  of  said 
real  estate  as  aforesaid  into  the  requisite  number  of  shares 
and  according  to  value  and  to  sign  and  allot  to  said  parties 
their  respective  share  therein,  and  that  said  referees  be  re- 
quired in  the  manner  prescribed  by  law  to  qualify  and  act, 
make  reports,  plats,  mark  out  said  shares  by  visible  monu- 
ments, if  necessary  employ  competent  surveyor  and  assis- 
tants to  aid  them,  and  to  describe  the  respective  shares  of  all 
the  parties  in  said  lands  correctly  and  with  reasonable  par- 
ticularity, and  in  all  other  respects  to  act  in  accordance  with 
the  orders  of  this  court  and  the  laws  of  this  state;  (3)  upon 
the  "Reports"  and  "Plats"  of  the  referees  being  confirmed 
it  is  asked,  that  judgment  and  decree  thereon  be  rendered 
and  recorded,  making  the  partition  of  said  lands  as  shown 
thereby  firm  and  effectual  forever,  and  accordingly  confirm- 
ing and  quieting  the  titles  and  shares  of  said  parties  in  said 
property;  (4)  should  it  be  apparent  (or  the  parties  so  agree) 
that  the  aforesaid  real  estate  cannot  be  equitably  divided 
into  the  requisite  number  of  shares,  then  it  is  prayed  that  a 
'sale  of  said  lands  be  ordered  and  decreed  by  this  court  in 
the  manner  prescribed  by  law,  and  that  referees  be  accord- 
ingly appointed,  commissioned  and  qualified,  and  that  they 
give  notice,  and  conduct  and  make  sale  of  said  real  estate 
and  execute  and  deliver  good  and  sufficient  deeds  of  con- 
veyance for  said  property  to  the  purchaser  thereof,  all  in 


Chapter  LXIX.]  1085  [Form  1634. 

accordance  with  the  provisions  of  the  laws  of  this  state 
and  under  and  subject  to  the  orders  and  approval  of  this 
court,  and  that  said  referees  make  and  cause  to  be  filed  in 
this  acMon  full  and  true  reports  of  their  proceedings  in  the 
premises;  (5)  that  the  net  proceeds  arising  from  the  sales 
of  said  lands  be  distributed  among  all  the  parties  herein  in 
proportion  and  in  accordance  with  their  respective  shares  in 
said  lands,  and  that  the  same  be  paid  over  to  them  by  said 
referees  in  due  time;  (6)  that  such  further  orders,  approval 
and  decrees  as  may  be  required  in  the  premises  and  under 
the  law  be  made  and  recorded  by  the  court;  (7)  that  the 
proper  costs  and  the  expenses  pertaining  to  abstracts  and 
other  necessary  and  lawful  matters  together  with  the  attor- 
ney's fees  as  provided  by  statute  in  and  about  this  action  and 
pertaining  to  the  partition  or  sale  of  said  premises  be  ordered, 
assessed  and  adjudged  to  be  paid  by  all  the  parties  in  this 
action  in  proportion  to  their  respective  interests  in  said  lands, 
and  that  said  costs,  expenses  and  attorney's  fees  be  decreed 
to  be  and  shall  remain  liens  upon  such  shares  until  paid, 
and  that  the  parties  entitled  thereto  have  power  to  enforce 
the  collection  thereof  by  "Fee  Bill"  or  "Special  Execution" 
against  the  party  in  default  or  against  the  land  assigned  to  him. 

L....  M.... 
Attorney  for  Plaintiff. 
[Venue.] 

I, A.,..  B....,  being  duly  sworn  on  oath  depose  and  say 
that  I  am  the  plaintiff  in  the  foregoing  petition  and  that  said 
petition,  abstracts,  statements,  description  of  lands,  "Ex- 
hibit A",  have  been  examined  by  me  and  read  to  me  and  that 
I  understand  and  know  the  contents  thereof  and  statements 
therein,  and  that  the  same  and  all  allegations  and  averments 
thereof  are  true  as  I  verily  believe. 

A....  B.... 
[Jurat.] 

"STATEMENT"  AND  "EXHIBIT  A". 

The  following  is  a  true  description  of  all  the  real  estate 
involved  in  this  action,  and  mention  in  paragraph  I  of  this 
petition,  and  as  set  forth  in  the  "Abstracts  of  Title"  in  this 
cause: 


CHAPTER  LXX. 

COMPLAINTS  FOR  ADMEASUREMENT  OF 
DOWER. 

1635.  By   widow,   for   admeasurement  of  dower. 

In  a  number  of  states,  estates  in  dower  and  by  the  curtesy 
have  been  aboHshed.  Cal.  C.  G.  1906  sec.  173;  Colo.  Stats. 
Ann.  1911  sec.  7040;  Idaho  Rev.  Codes  1908  sec.  268; 
Kans.  Gen.  Stats.  1909  sec.  2961;  Neb.  R.  S.  1913  sec.  1268; 
N.  Dak.  Rev.  Codes  1905  sec.  5188;  S.  Dak.  C.  C.  1908 
sec.  1095;  Okla.  Comp.  Laws  1909  sec.  8986;  Utah  Comp. 
Laws  1907  sec.  2832;  Wash.  Rem.  and  Bal.  Code  1910  sec. 
1343;  Wyo.  Comp.  Stats.  1910  sec.  5727.  The  same  is  true 
in  Iowa  and  Minnesota,  although  in  those  states  the  estate 
in  fee  given  in  its  stead  is  often  denominated  dower.  Iowa 
Ann.  Code  1897  sec.  3366;  Minn.  Gen.  Stats.  1913  sec.  7238. 
In  other  states  the  estate  in  dower  is  still  recognized  and  regu- 
lated by  the  statutes.  Wis.  Stats.  1913  sec.  2159;  Ark. 
Dig.  of  Stats.  1904  sec.  2687;  Mont.  Rev.  Codes  1907  sec. 
3708;  Mo.  R.  S.  1909  sec.  345;  Oregon  Laws  1910  sec.  7286. 
Doubtless  courts  of  equity  retain  jurisdiction  to  assign  dower 
to  a  widow  where  by  law  the  estate  still  exists.  However, 
as  the  statutes  generally  provide  for  the  admeasurement  by 
summary  proceedings  on  petition  to  the  probate  court,  it  is 
probable  that  the  following  form  will  be  of  little  practical 
use,  as  under  ordinary  circumstances  the  rule  is  general  that 
courts  of  general  jurisdiction  will  refuse  to  entertain  actions 
when  there  is  a  complete  and  adequate  remedy  in  the  pro- 
bate court. 

1635.    By  widow,  for  admeasurement  of  dower. 

I.     That  on  or  about  the  ....  day  of ,  19. .,  the 

plaintiff  intermarried  with   C D . . . .   late  of    

county,  who  afterward,  on  or  about  the  ....  day  of , 


Chapter  LXX.]  1087  [Form  1635. 

19.  .,*  departed  this  life  intestate  a  resident  of  said  county, 
leaving  the  plaintiff  his  widow,  and  E . . . .  F . . . .  and  G . . . 
H . . . .  his  children  and  only  heirs  at  law,  and  that  letters  of 
administration  were  thereafter  and  on  or   about  the   .... 

day  of ,  19. .,  duly  granted  to  the  defendant  J. . . . 

K . .  .  .  upon  the  said  estate,  and  that  the  said  J . . . .  K . . . . 
is  still  such  administrator,  duly  qualified  and  acting.  [Or, 
if  deceased  left  a  will:  *  departed  this  life  a  resident  of  said 
county,  leaving  the  plaintiff  his  widow,  and  a  last  will  and 

testament,  which  was  on  the    ....    day  of   ,   19.., 

duly  admitted  to  probate  by  the   court  of   

county,  and  a  copy  thereof  is  attached  hereto,  made  part  of 
this  complaint,  and  marked  Exhibit  A,  and  that  letters 
testamentary  thereon  were  duly  granted  by  said  court  on 

the  ....  day  of ,  19 ,  . ,  to  the  defendant  J . . . .  K . . . . , 

who  is  still  such  administrator  duly  qualified  and  acting.l 

II.  That  the  said  C. . . .  D. .  .  .  died  seized  in  fee  and 
possessed  of  the  fof  owing  described  premises  [insert  descrip- 
tion]. 

III.  That  upon  the  death  of  the  said  C D said 

lands  and  premises  descended  to  the  defendants  E . . . . 
F . . . .  and  G . . . .  H . . . .  as  heirs  at  law  of  the  said  C . . . . 
D . . . .  [or,  were  devised  to  the  said  E . . . .  F . . . .  and  G . . . . 
H. . . .  by  the  terms  of  said  will]  subject  to  and  charged  with 
the  right  of  dower  of  the  plaintiff  therein  [if  provision  for  the 
widow  is  made  by  the  will  add:  and  that  this  plaintiff  did,  on 

the  ....  day  of ,  19 . .,  duly  elect  in  writing  to  accept 

the  provisions  made  for  her  in  lieu  of  dower  by  the  terms  of 
said  will]. 

IV.  That  the  plaintiff,  by  reason  of  said  marriage,  upon 
the  death  of  said  C. . . .  D . . . .  became  entitled  to  dower  in 
the  lands  above  described,  which  dower  has  never  been 
assigned  to  her,  nor  has  she  received  any  equivalent  therefor, 
or  released  the  same. 

V.  That  the  said  premises  are  in  the  possession  of  the  de- 
fendant L. . .  .  M who  claims  some  interest  in  or  right 

to  the  possession  thereof,  or  some  part  thereof,  which  right 
or  interest,  if  any,  is  subject  to  the  plaintiff's  right  of  dower 
therein. 

VI.  [State  any  facts  showing  that  the  remedy  in  the  probate 
court  is  inadequate,] 


Form  1635.] 


1088  [Chapter  LXX. 


WHEREFORE  plaintiff  demands  judgment  establishing 
and  adjudging  her  said  right  of  dower  in  the  real  estate  above 
mentioned  and  described,  and  that  the  same  be  set  of!  and 
apportioned  to  her  by  reference,  or  otherwise  as  the  court 
may  direct;  and  for  such  other  and  further  relief  as  may  be 
just  and  equitable. 


CHAPTER  LXXI. 


COMPLAINTS   IN  ACTIONS  TO   QUIET  TITLE 
DETERMINE  ADVERSE  TITLES  TO  REAL 
ESTATE. 


OR 


1636.  Complaint  by  owner  in  sLatu- 

tory  action  to  quiet  title. 
(Wisconsin.) 

1637.  The    same,    by    mortgagee. 

(Wisconsin.) 

1638.  Complaint  in  statutory  ac- 

tion by  one  in  possession  to 
quiet  title.     (Minnesota.) 

1639.  Complaint  in   statutory   ac- 

tion by  owner  to  quiet  title 
to  vacant  or  unoccupied 
land.     (Minnesota.) 

1640.  Complaint  by  owner  in  statu- 

tory action  to  quiet  title. 
(Iowa.) 

1641.  By  owner  in  statutory  action 

to  quiet  title.  (North  and 
South  Dakota.) 

1642.  The  same,  when  possession  of 

the  premises  is  also  sought. 
(North  and  South  Dako- 
ta.) 

1643.  Complaint  in  equity  to  en- 

join a  judicial  sale  and  re- 
move cloud. 

1644.  Complaint  in  equity  to  can- 


cel a  mortgage  which  is  a 
cloud  upon  title,  general 
form. 

1645.  By  owner  to  cancel  mortgage 

which  has  been  paid. 

1646.  By  owner  to  cancel  mortgage 

obtained  by  duress. 

1647.  By  owner  to  cancel  deed  and 

quiet  title. 

1648.  Complaint     in     equity     by 

owner  to  set  aside  illegal 
tax  or  assessment. 

1649.  Complaint  by  owner  in  ac- 

tion to  set  aside  tax  claims. 

1650.  Complaint   in   statutory   ac- 

tion by  tax  title  claimant 
to  bar  original  owners. 
(Wisconsin.) 

1651.  Petition   in    action   to   quiet 

title.     (Iowa.) 

1652.  Complaint  by  tax  certificate 

holder  to  quiet  title.  (Min- 
nesota.) 

1653.  Outlme  of  complaint  to  have 

mortgage  cancelled  for 
duress. 


Courts  of  equity  have  exercised  the  power  to  prevent  or 
remove  clouds  on  the  title  of  land,  from  very  early  times. 
In  such  an  action  it  must  appear  by  the  comp'aint  that  it  is 
brought  by  the  owner,  and  that  the  cloud  to  be  removed  is  an 
apparent  incumbrance  which  renders  a  resort  to  evidence 
outside  of  the  record  necessary  to  show  that  it  is  invalid. 
When  these  facts  are  shown,  the  court  will  grant  full  relief 
by  the  reformation,  surrender,  or  cancellation  of  deeds  or 
other  instruments,  or  the  execution  of  deeds  or  releases  as 
69 


Introduction.] 


1090 


[Chapter  LXXI. 


may  be  necessary.  Pier  v.  Fonc'  du  Lac,  38  Wis.  470.  In 
addition  to  this  ancient  remedy  the  statutes  of  most  of  the 
states  provide  similar  remedies.  ^ 


*  In  Wisconsin  any  person  having 
title  and  possession  of  land,  or  hav- 
ing title  to  vacant  land,  or  owning 
any  incumbrance  on  land,  may 
bring  an  action  against  any  person 
making  any  claim  thereto,  for  the 
purpose  of  establishing  the  plain- 
tiff's right.  Wis.  Stats.  1913  sec. 
3186. 

In  Arizona  an  action  to  determine 
and  quiet  the  title  to  real  property 
may  be  brought  by  any  one  having, 
or  claiming,  an  interest  therein, 
whether  in  or  out  of  possession  of 
the  same,  against  any  person  or  cor- 
poration or  the  state  or  Arizona, 
when  such  person,  corporation  or 
state  claims  any  estate  or  interest, 
adverse  to  the  party  bringing  the 
isuit,  in  or  to  the  real  estate,  the  title 
to  which  is  to  be  determined  or 
quieted  by  the  action  brought.  Ariz. 
R.  S.  1913,  sec.  1623. 

In  Arkansas  and  N^ebraska  an  ac- 
tion may  be  brought  and  prose- 
cuted to  final  decree,  judgment  or 
order,  by  any  person  or  persons, 
whether  in  actual  possession  or 
not,  claiming  title  to  real  estate, 
against  any  person  or  persons, 
whether  in  actual  possession  or 
not,  who  claim  an  adverse  estate 
or  interest  therein,  for  the  purpose 
of  determining  such  estate  or  in- 
terest, and  quieting  the  title  to  said 
real  estate.  Ark.  Dig.  of  Stats. 
1904  sec.  6517;  Neb.  R.  S.  1913  sec. 
6266;  6268. 

In  California,  Idaho,  Montana, 
South  Dalxota,  and  Utah,  an  action 
may  be  brought  by  any  person 
against  another  who  claims  an 
estate  or  interest  in  real  property, 
adverse  to  him,  for  the  purpose  of 
determining  such  adverse  claim. 
Cal.  C.  C.  P.  1905  sec.  738;  Idaho 
Rev.  Codes  1908  sec.  4538;  Mont. 
Rev.  Codes  1907  sec  6870:  South 
Dak.  C.  C.  P.  1908  sec  675;  Utah 
Comp.  Laws  1907  sec.  3511. 


In  Colorado,  Kansas,  Oklahoma, 
and  Wyoming,  an  action  may  be 
brought  by  any  person  in  posses- 
sion, by  himself  or  his  tenant,  of 
real  property  against  any  person 
who  claims  an  estate  therein  ad- 
verse to  him,  for  the  purpose  of  de- 
termining such  adverse  claim,  estate 
or  interest.  Colo.  Code  Ann.  1911 
sec.  274;  Kans.  Gen.  Stats.  1909  sec. 
6213;  Okla.  Comp.  Laws  1909  sec. 
6121;  Wyo.  Comp.  Stats.  1910  sec. 
4964. 

In  Iowa  an  action  to  determine 
and  quiet  the  title  of  real  property 
may  be  brought  by  any  one, 
whether  in  or  out  of  possession, 
having  or  claiming  an  interest 
therein,  against  any  person  claim- 
ing title  thereto,  though  not  in  pos- 
session. Iowa  Ann.  Code  1897  sec. 
4223. 

In  Minnesota  any  person  in  pos- 
session of  real  property  bj'  himself 
or  his  tenant,  or  any  person  having 
or  claiming  title  to  vacant  or  un- 
occupied real  property,  may  bring 
an  action  against  any  person  who 
claims  an  estate  or  interest  therein, 
or  a  lien  thereon,  adverse  to  him,  for 
the  purpose  of  determining  such  ad- 
verse claim  and  the  rights  of  the 
parties,  respectively.  Minn.  Gen. 
Stats.  1913  sec.  8060. 

In  Missouri  any  person  claiming 
any  title,  estate  or  interest  in  real 
property,  whether  the  same  be  legal 
or  equitable,  certain  or  contingent, 
present  or  in  reversion  or  re- 
mainder, whether  in  possession  or 
not,  may  institute  an  action  against 
any  person  or  persons  having  or 
claiming  to  have  any  title,  estate, 
or  interest  in  such  property, 
whetlier  in  possession  or  not,  to 
ascertain  and  determine  the  estate, 
title  and  interest  of  said  parties,  re- 
spectively, in  such  real  estate,  and 
to  define  and  adjudge  by  its  judg- 
ment or  decree  the  title,  estate  and 


Chapter  LXXL] 


1091 


[Form  1636. 


1636.     Complaint  by  owner  in  statutory  action  to  quiet 
title  (Wis.  Stats.  1913  sec.  3186). 

I.  That  the  plaintiff  is  the  owner  in  fee  simple  of  the 
following  described  premises,  4o-wit  [describe  same]  situate 
in  said  county,  and  state  of  Wisconsin;  and  that  he  is  in  the 
actual  possession  and  occupancy  thereof  [or,  that  the  said 
premises  are  vacant  and  unoccupied]. 


interest  of  the  parties  severally  in 
and  to  such  real  property.  Mo.  R. 
S.  1909  sec.  2535. 

In  North  Dakota  an  action  may  be 
maintained  by  any  persons  having 
an  estate  or  interest  in  or  lien  or 
incumbrance  upon  real  property 
whether  in  or  out  of  possession 
thereof,  and  whether  said  property 
is  vacant  or  unoccupied  against  any 
persons  claiming  an  estate  or  in- 
terest in  or  lien  or  incumbrance 
upon  the  same  for  the  purpose  of 
determining  such  adverse  estate, 
interest,  lien  or  incumbrance.  N. 
Dak.  Rev.     Codes  1905  sec.  7519. 

In  Oregon  any  person  claiming  an 
interest  or  estate  in  real  estate  not 
in  the  actual  possession  of  another 
may  maintain  a  suit  in  equity 
against  another  who  claims  an  in- 
terest or  estate  therein  adverse  to 
him,  for  the  purpose  of  determining 
such  conflicting  or  adverse  claims, 
interests,  or  estates.  Oregon  Laws 
1910  sec  516. 

In  Washington  any  person  having 
a  valid  subsisting  interest  in  real 
property,  and  a  right  to  the  posses- 
sion thereof,  may  recover  the  same 
by  action,  to  be  brought  against  the 
tenant  in  possession;  if  there  is  no 
such  tenant,  then  against  the  per- 
son claiming  the  title  or  some  inter- 
est therein,  and  may  have  judgment 
in  such  action  quieting  or  removing 
a  cloud  from  plaintiff's  title.  An 
action  to  quiet  title  may  also  be 
brought  by  the  known  heirs  of  any 
deceased  person,  or  of  any  person 
presumed  in  law  to  be  deceased,  or 
by  the  successors  in  interest  of  such 
known  heirs  after  adverse  posses- 
sion of  ten  years,  against  the  un- 


known heirs  of  such  deceased  per- 
son or  against  such  person  pre- 
sumed to  be  deceased  and  his  un- 
known heirs,  also  by  any  person  in 
the  actual  possession  of  real  prop- 
erty, against  the  unknown  heirs  of 
a  person  known  to  be  dead,  or 
against  any  person  where  it  is  not 
known  whether  such  person  is  dead 
or  not.  and  against  the  unknown 
heirs  of  such  person,  and  if  it  shall 
thereafter  transpire  that  such  per- 
son was  at  the  time  of  commencing 
such  action  dead  the  judgment  or 
decree  in  such  action  shall  be  as 
binding  and  conclusive  on  the  heirs 
of  such  person  as  though  they  had 
been  known  and  named.  Wash. 
Rem.  and  Bal.  Code  Supp.  1913  sec. 
785. 

It  seems  that  in  Texas  the  action 
to  quiet  title  has  been  abolished  and 
is  now  governed  by  action  of  tres- 
pass to  try  title.  Tex.  Civ.  Stats. 
Ann.  1913  articles  7731-7768.  As 
to  bringing  such  actions  against 
non-residents,  the  statute  is  as 
follows :  "An  action  may  be  brought 
and  prosecuted  to  final  decree,  judg- 
ment or  order,  by  any  person  claim- 
ing a  right  or  interest  in  or  to  any 
property  in  this  state,  against  any 
person  or  persons  who  are  non- 
residents of  this  state,  or  whose 
place  of  residence  is  unknown,  or 
who  are  transient  persons,  who 
claim  adverse  estate  or  interest  in, 
or  who  claim  any  lien  or  incum- 
brance on  said  property,  for  the 
purpose  of  determining  such  estate, 
interest,  lien,  or  incumbrance,  and 
granting  the  title  to  said  property, 
or  settling  the  hen  or  incumbrance 
thereon."    Art.  2172. 


Forms  1637,  1638.]  1092  '  [Chapter  LXXI. 

II.  That  the  defendant  makes  some  claim  to  said  prem- 
ises, adverse  to  the  plaintiff's  said  title,  whereas  in  truth  and 
in  fact  the  defendant  has  no  interest  or  estate  in  said  prem- 
ises of  any  nature. 

WHEREFORE  the  plaintiff  demands  judgment  that  his 
claim  to  said  premises  be  established  against  any  claim  of 
the  defendant  therein,  and  that  the  defendant  be  forever 
barred  against  having  or  claiming  any  right  or  title  to  the 
said  premises  adverse  to  the  plaintiff;  and  that  he  release  to 
the  plaintiff  all  claim  to  said  premises,  and  pay  the  costs  of 
this  action,  and  that  the  plaintiff  have  such  further  relief  as 
may  be  just  and  equitable. 

1637.  The  same,  by  mortgagee  (Wis.  Stats.  1913  sec. 

3186). 

I.  That  the  plaintiff  is  the  owner  and  holder  of  an  incum- 
brance or  lien  upon  the  following  described  premises  [describe 
same]  which  said  incumbrance  or  lien  consists  of  a  mortgage 
thereon  duly  executed  by  G .  . .  .  H . . . .  the  owner  in  fee  of 

said  premises,  on  the  ....  day  of ,  19.  .,  to  secure  the 

payment  of dollars,  and  which  mortgage  is  still  sub- 
sisting and  unpaid. 

II.  [As  in  last  preceding  form,  substituting  the  word  in- 
cumbrance or  mortgage,  for  the  word  title.] 

WHEREFORE,  etc.  [prayer  for  Judgment  as  in  the  last 
preceding  form.] 

1638.  Complaint  in  statutory  action  by  one  in  possession 

to  quiet  title  (Minn.  Gen.  Stats.  1913  sec.  8060. 
Held  sufficient  in  Barber  v.  Evans,  27  Minn.  92; 
6N.  W.  445). 

I.  That  the  plaintiff  is  the  owner  in  fee  and  in  the  actual 
possession  of  [describing  premises]  in  the  county  and  state 
aforesaid. 

II.  That  defendant  claims  an  estate  or  interest  in  said 
premises  or  lien  thereon  adverse  to  the  plaintiff. 

WHEREFORE  plaintiff  demands  judgment  that  the  said 
defendant  has  no  estate  or  interest  in  said  premises  or  lien 
thereon,  and  for  the  costs  and  disbursements  of  this  action. 


Chapter  LXXL]  1093  [Forms  1639-1641. 

1639.  Complaint  in  statutory  action  by  owner  to  quiet 

title  to  vacant  or  unoccupied  land  (Minn.  Gen. 
Stats.  1913  sec.  8060). 

I.  That  the  plaintiff  is  the  owner  in  fee  of  the  following 
described  lands  [describe  same]  and  that  the  same  are  vacant 
and  unoccupied. 

II.  That  the  defendant  claims  an  interest  or  estate  in 
said  premises,  or  lien  thereon  adverse  to  the  plaintiff. 

WHEREFORE  plaintiff  demands  judgment  that  he  be 
declared  to  be  the  owner  in  fee  of  said  premises,  and  that  the 
defendant  has  no  interest  therein  or  lien  thereon,  and  for  the 
costs  and  disbursements  of  this  action. 

1640.  Complaint  by  owner  in  statutory  action  to  quiet 

title  (Iowa  Ann.  Code  1897  sec.  4224). 

I.  That  the  plaintiff  is  the  owner  in  fee  simple  of  the 
following  described  real  estate  [insert  description]. 

II.  That  the  plaintiff  is  credibly  informed,  and  believes, 
that  the  defendant  makes  some  claim  adverse  to  the  estate 
of  the  plaintiff  in  said  property. 

WHEREFORE  the  plaintiff  prays  judgment  that  his 
estate  be  established  against  the  adverse  claims  of  the  de- 
fendant, and  that  said  defendant  be  barred  and  forever 
estopped  from  having  or  claiming  any  right  or  title  adverse 
to  the  plaintiff  in  and  to  said  premises,  that  the  defendant 
be  adjudged  to  pay  the  costs  of  this  actipn. 

[The  statute  requires  that  the  petition  be  verified.] 

1641.  By  owner  in  statutory  action  to  quiet  title  (N. 

Dak.  Rev.  Codes  1905  sec.  7519;  S.  Dak.  C.  C. 
P.  sec  675).' 

I.  That  the  plaintiff  is  the  owner  in  fee  simple  of  the 
following  described  real  estate  [insert  accurate  description.] 

II.  That  the  defendant  wrongfully  claims  an  estate  or 
interest  in   the   real   estate   adverse   to  the   said   plaintiff. 

« A  complaint   alleging  that  the  291;  9  Supt  Ct.  293.   The  holder  of 

plaintiff  is  the  owner  in  fee,   and  a  certificate  of  tax  sale  claims  an 

that  the  defendant  claims  an  ad-  "estate  or  interest"  in  lands  within 

verse    estate    or    interest    is    sufTi-  the  meaning  of  the  statute.    Clark, 

cient  under  such  a  statute.      Clark  v.     Darlington,     supra;    see     also 

V.  Darlington,  7  S.  Dak.  148;  63  N.  McHenry  v.  Kidder  Co.,  8  N.  Dak. 

W.  771;  Ely  v.  Ry.  Co..  129  U.  S.  413;  79  N.  W.  875. 


Forms  1642,  1643.]  1094  [Chapter  LXXI. 

WHEREFORE  plaintiff  demands  judgment  that  the 
plaintiff's  title  to  said  lands  be  adjudged  valid,  and  that  the 
defendant  has  no  lawful  estate  or  interest  in  said  lands,  or 
any  of  them,  and  that  the  plaintiff  recover  the  costs  of  this 
action. 

1642.  The  same,  when  possession  of  the  premises  is  also 

sought    (N.    Dak.  Rev.  Codes    1905    sec.    7523; 
S.  Dak.  C.  C.  P.  sec.  678). 

I.  [As  in  last  preceding  form.] 

II.  That  the  defendants  C D and  E F . . . . 

wrongfully  claim  some  interest  or  estate  in  said  real  estate 
adverse  to  the  plaintiff,  and  that  the  defendant  E . .  . .  F . . .  . 
is  in  actual  possession  of  said  real  estate,  and  wrongfully 
withholds  the  same  from  the  plaintiff. 

[Add  to  demand  for  judgment  in  last  preceding  form]:  that 
the  plaintiff  have  a  writ  for  the  possession  of  said  premises, 
etc. 

1643.  Complaint  in  equity  to  enjoin  a  judicial  sale  and 

remove  cloud. 

I.  That  at  the  dates  hereinafter  mentioned  the  plaintiff 
was  and  still  is  the  owner  of  the  following  described  premises, 
viz.  [describe  them]. 

II.  That  plaintiff  purchased  said  premises  on  the  .... 

day  of ,  19. .,  from  one  E. . . .  F. . . .  for  the  sum  of 

dollars,  which  sum  was  then  duly  paid,  but  that  the 

legal  title  to  said  premises  has  remained  in  E , . . .  F . . . . 

III.  That  on  the  ....  day  of ,  19. .,  one  G. . . . 

H. . . .  recovered  a  judgment  for  the  sum  of dollars 

in  the court  for county,  against  said  E . . . . 

F. . . .,  and  on  or  about  the day  of '.,  19. .,  exe- 
cution w^as  issued  on  said  judgment  at  the  instance  of  the 
plaintiff  therein,  and  placed  in  the  hands  of  0. . . .  P. . . . 

sheriff  of county,  who  on  the   ....  day  of , 

19. .,  levied  the  same  upon  said  real  estate  as  the  property  of 
said  E . . . .  F . . . . ,  and  has  advertised  said  real  estate  for 
sale  on  the  ....  day  of ,  19 .  . ,  under  said  execution. 

IV.  That  said  judgment  is  not  now  and  at  no  time  has 
been  a  lien  upon  said  real  estate,  or  any  part  thereof,  for  the 
reason  that  said  E. . . .  F. . . .  since  the  recovery  of  said  judg- 


Chapter  LXXL]  1095  [Forms  1644,  1645. 

ment,  has  had  no  interest  in  said  real  estate,  and  that  the 
sale  of  said  real  estate  under  said  execution  will  cast  a  cloud 
upon  the  plaintiff's  title  to  the  same. 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
defendant  may  be  forever  enjoined  from  selling  said  real 
estate  under  said  execution,  and  from  enforcing  said  judg- 
ment against  said  real  estate,  and  that  the  title  to  said  real 
estate  may  be  adjudged  to  be  in  this  plaintiff,  free  and  clear 
from  all  claim  or  lien  thereon  by  virtue  of  said  judgment  and 
execution,  and  that  the  plaintiff  recover  the  costs  of  this 
action,  and  have  such  other  and  further  relief  as  may  be 
just  and  equitable. 

1644.  Complaint  in  equity  to  cancel  a  mortgage  which 

is  a  cloud  upon  title,  general  form. 

I.  That  the  plaintiff  is  the  owner  in  fee  simple  of  the 
following  described  premises  [insert  description]. 

II.  [Allege  the  making  of  the  mortgage,  or  other  apparent 
lien,  stating  facts  which  show  that  on  its  face  it  appears  valid, 
and  that  in  fact  it  is  void.] 

III.  That  said  mortgage  was,  on  the  ....  day  of , 

19. .,  duly  recorded  m  the  office  of  the  register  of  deeds  of 
said  county,  in  Book  ....  of  Mortgages,  p  . . . .,  and  still 
remains  unsatisfied  of  record,  and  a  cloud  upon  the  plaintiff's 
title. 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
defendant  give  up  said  mortgage  to  be  cancelled,  and  that  the 
same  be  satisfied  of  record ;  and  for  the  costs  of  this  action. 

1645.  By  owner  to  cancel  mortgage  which  has  been  paid. 

I.  [Allege  ownership  of  premises  as  in  last  preceding  form.] 

II.  That  on  the  ....  day  of ,  19. .,  the  plaintiff 

made  and  delivered  to  the  defendant  a  mortgage  upon  said 
premises  to  secure  the  payment  of  a  certain  promissory  note 

of  that  date,  executed  by  plaintiff,  for  the  sum  of   

dollars  due ,  19. .,  which  mortgage  on  said  day  was 

duly  recorded  in  the  office  of  the  register  of  deeds  of 

Qounty  and  still  remains  of  record  undischarged. 

III.  That  on  the  ....  day  of ,  19.  .,  the  plaintiff 

paid  said  notes  in  full,  and  thereupon  tendered  to  said  defend- 
ant his  reasonable  charges  for  discharging  said  mortgage  up- 


Form  1646.]  1096  [Chapter  LXXI. 

on  the  records  of  the  county,  and  requested  him  to  acknowl- 
edge satisfaction  thereof  upon  said  records,  and  that  more 
than  seven  days  have  elapsed  since  said  tender  and  request 
to  discharge  said  mortgage,  but  said  defendant  has  entirely 
failed  to  discharge  the  same  and  still  refuses  so  to  do. 

IV.  That  said  mortgage  is  a  cloud  upon  plaintilT's  title 
to  said  real  estate  [and  the  plaintiff  has  sustained  damages  by 
reason  of  the  failure  of  said  defendant  to  discharge  the  same 
in  the  sum  of dollars]. 

WHEREFORE  the  plaintiff  demands  judgment  that  said 
mortgage  may  be  declared  satisfied  and  discharged  of  re- 
cord, and  the  said  cloud  upon  plaintiff's  title  be  removed 

[and  that  he  recover dollars,  his  damages  aforesaid] 

with  the  costs  of  this  action. 


1646.  By  owner  to  cancel  mortgage  obtained  by  duress 
(adapted  from  Galusha  v.  Sherman,  105  Wis. 
263;  81N.  W.  495). 

I.  [Allege  ownership  of  property  mortgaged,  as  in  preceding 
form.] 

II.  That  on  or  about  the  ....  day  of ,  19. .,  the 

defendant  A ....  B  .... ,  with  the  intent  to  defraud  and  cheat 
the  plaintiff,  and  to  obtain  from  plaintiff  the  note  and  mort- 
gage hereinafter  described,  commenced  an  action  against  the 

plaintiff  in  the court  to  recover  the  sum  of 

dollars,  and  alleged  in  the  complaint  in  said  action  that  this 
plaintiff  had  knowingly  and  maliciously  given  and  sold  to 
the  said  A . .  . .  B . . . .  impure,  diseased,  corrupted  and  un- 
wholesome food  to  eat,  which  allegation  was  wholly  false 
and  known  so  to  be  by  said  defendant  A .  . . .  B . . . . 

III.  That  the  said  defendant  A. .  .  .  B. . .  .  on  or  about 

the  said  ....  day  of ,  19. .,  caused  the  said  complaint 

and  summons  in  legal  form  to  be  served  on  this  plaintiff  by 
one  E . . . .  F .  .  .  .  and  that  the  said  E .  . . .  F . .  .  .  at  the  time 
of  the  service  and  at  the  direction  of  the  defendant  A .  .  . . 
B , . . .  told  the  plaintiff  that  he  [plaintiff]  had  committed  a 
crime  against  the  laws  of  this  state,  and  was  liable  to  impris- 
onment therefor,  and  that  unless  the  plaintiff  settled  the  said 
action  he  [the  plaintiff]  would  be  arrested  on  a  criminal 
warrant  and  imprisoned  in  the  state  prison,  but  that  if  he 


I 


Ch.cplcr  LXXL]  1097  [Form  164G. 

settled  the  same  no  criminal  proceeding  would  be  com- 
menced. 

IV.  That  the  plaintiff,  fearing  that  the  defendant  would 
execute  said  threats  and  cause  this  plaintiff  to  be  arrested 
and  imprisoned,  proceeded  with  the  said  E.  ,  .  .  F. . . .  to  the 

city  of and  to  the  office  of  the  defendant  A B . . . . 

and  that  the  said  A ... .  B .  .  . .  [and  one  G . . . .  H . . . .  ]  then 
and  there  told  this  plaintiff  that  he  would  have  to  pay  said 

A. . . .  B . . . .  the  sum  of dollars,  and  that  unless  he 

did  so  or  gave  a  mortgage  therefor  upon  his  said  real  estate 
he  [the  plaintiff]  would  be  arrested  on  criminal  warrant  and 
imprisoned  in  the  state  prison;  all  of  which  threats  and 
statements  were  false  and  fraudulent  in  fact  and  were 
made,  wih  intent  to  intimidate  and  defraud  this  plaintiff. 

V.  That  this  plaintiff  was  overcome  with  great  fear  by 
reason  of  said  threats,  and  his  judgment  and  power  of  will 
were  thereby  coerced  and  subdued;  and  believing  that  if  he 
did  not  pay  said  sum  of  money  or  give  said  mortgage  as 
demanded  he  would  be  arrested  and  imprisoned  as  aforesaid, 
this  plaintiff,  in  order  to  avoid  such  prosecution  and  im- 
prisonment and  for  no  other  purpose  or  consideration  exe- 
cuted and  delivered  to  the  defendant  A.  .  . .  B . , .  .  his  pro- 
missory note  [describe  the  note]  and  to  secure  payment  thereof 
at  the  same  time  executed  and  delivered  to  the  defendant 
A . . . .  B .  . .  .  a  certain  mortgage  upon  the  said  real  estate 
[describe  mortgage]  which  said  mortgage  was  immediately 
recorded  by  the  said  defendant  in  the  office  [name  proper 
office]  and  is  still  of  record  undischarged. 

VI.  That  the  said  note  and  mortgage  were  so  executed 
and  delivered  without  any  consideration  whatever,  and 
under  the  compulsion  and  duress  of  the  aforesaid  threats  of 
prosecution  and  imprisonment,  and  are  wholly  void,  but 
that  the  said  mortgage  constitutes  an  apparent  cloud  upon 
the  title  of  the  plaintiff  to  said  real  estate. 

VII.  That  the  defendant  A. . .  .  B .  .  . .  is  still  the  holder 
of  said  note  and  mortgage  [or  if  assigned,  allege  assignment 
and  assignee's  knowledge  of  facts  and  make  such  assignee  a 
defendant]. 

WHEREFORE  plaintiff  demands  judgment  that  said  note 
and  mortgage  be  declared  void,  and  that  the  same  be  deliv- 
ered up  and  cancelled  and  discharged  of  record,  and  the 
cloud  upon  plaintiff's  title  to  said  real  estate  removed,  and 


Form  1647.]  1098  [Chapter  LXXI. 

that  said  defendant  be  enjoined  and  restrained  from  selling 
or  transferring  said  note  and  mortgage,  and  for  such  further 
relief  as  may  be  just  and  equitable,  with  costs. 


1647.    By  owner  to  cancel  deed  and  quiet  title. 

I.  Thatonthe  ....  dayof ,  19. .,  oneE F 

was  the  owner  in  fee  of  the  following  described  premises 
[describe  same]  and  that  said  E . . . .  F . . . .  on  said  day  sold 
and  conveyed  the  same  by  deed  duly  executed  to  G . . . . 

H .  .  . .  who  thereafter  and  on  the  ....  day  of ,  19 . ., 

sold  and  conveyed  the  same  by  deed  duly  executed  to  this 
plaintiff. 

II.  That  immediately  after  the  conveyance  of  said  prem- 
ises to  this  plaintiff  he  went  into  actual  possession  of  the 
same,  and  has  used,  occupied  and  possessed  the  same  ever 
since  that  time  and  is  still  in  possession  thereof,  and  has  made 

valuable   improvements   thereon,   of   the   value   of    

dollars. 

III.  That  all  of  the  said  conveyances  of  said  premises 
except  the  deed  from  E ....  F ....  to  G ....  H ... .  were  duly 

recorded  in  the  ofTice  of  the  register  of  deeds  of   

county,  soon  after  the  same  were  executed  and  delivered, 
but  by  accident  said  deed  from  E ....  F ....  to  G ....  1 1 ... . 

was  not  recorded  until  about  the  ....  day  of ,  19. ., 

and  while  the  plaintiff  was  in  possession  of  said  premises. 

IV.  That  on  or  about  the  ....  day  of ,  19. .,  the 

defendant  J . . . .  K . . . .  obtained,  with  full  knowledge  and 
notice  of  the  plaintiff's  ownership  of  said  premises,  a  quit- 
claim deed  for  said  premises  from  said  E . . . .  F . . . .  for  an 

alleged  consideration  of dollars,  and  has  had  the  same 

recorded  in  the  office  of  the  register  of  deeds  of  said  county, 
and  now  claims  title  to  said  premises  against  the  plaintiff 
under  said  deed,  and  that  said  deed  is  a  cloud  upon  the  plain- 
tiff's title  to  said  premises,  and  tends  to  depreciate  the  value 
thereof. 

WHEREFORE  the  plaintiff  demands  judgment  that  said 
deed  from  E . ,  . .  F . . . .  to  J ... .  K .  . . .  may  be  set  aside  and 
declared  null  and  void,  and  that  the  cloud  upon  plaintiff's 
title  caused  thereby  may  be  removed ;  and  for  such  other  re- 
lief as  equity  may  require,  and  for  the  costs  of  this  action. 


Chapter  LXXL]  1099  [Forms  1648,  1649. 

1648.     Complaint  in  equity  by  owner  to  set  aside  illegal 
tax  or  assessment. 

I.  [Allege  ownership  of  premises  in  plaintiff,  as  in  pre- 
ceding forms.] 

II.  [Allege  corporate  character  of  city  or  other  municipal 
corporation  which  has  attempted  to  levy  the  tax.] 

III.  [Allege  levy  of  tax  or  assessment  upon  the  plaintiff's 
lands,  and  issuance  of  tax  certificates  or  deeds,  if  any;  the 
holder  should  be  made  a  defendant.] 

IV.  [Allege  with  certainty  and  particularity  the  defects  or 
illegalities  in  the  levy  which  are  relied  on  to  avoid  the  tax.] 

V.  [Allege  tender  of  amount  equitably  due  if  one  has  been 
made,  or  otherwise  allege  willingness  to  pay  same  unless  the 
land  be  exempt  or  the  tax  has  been  in  fact  paid,  or  the  tax  was 
without  jurisdiction.] 

WHEREFORE  [demand  of  judgment  for  cancellation  of  tax 
and  certificates  or  deeds,  with  prayer  for  injunction  if  necessary]. 


1649.    Complaint  by  owner  in  action  to  set  aside  tax 
claims. 

I.  That  the  plaintiff  is  the  owner  in  fee  [and  in  possession] 
of  the  following  premises:  [describe  same]. 

II.  [//  the  premises  are  vacant:]  That  said  premises  are 
vacant  and  unoccupied. 

III.  That  defendant  claims  a  title  or  interest  in  said 
premises,  or  lien  thereon  adverse  to  the  plaintiff,  by  and 
through  a  certain  tax  certificate  [or  tax  deed]  described  as 
follows:  [insert  description  of  certificate  or  deed]. 

IV.  That  said  tax  certificate  [or  tax  deed]  is  void  by  rea- 
son of  the  fact  [allege  ground  of  invalidity]. 

V.  [//  it  is  necessary  under  the  local  statute  to  allege  pay- 
ment of  the  tax  or  tender  of  the  amount  due,  insert  the  allegation 
here.] 

WHEREFORE  plaintiff  demands  judgment  that  said 
tax  certificate  [or  tax  deed]  be  adjudged  void,  and  that  the 
cloud  thereby  created  upon  plaintiff's  said  title  be  removed, 
and  that  plaintiff  recover  the  costs  and  disbursements  of 
this  action. 


Forms  1650,  1651.]  1100  [Chapter  LXXI. 

1650.  Complaint  in  statutory  action  by  tax  title  claim- 

ant to  bar  original  owners  (Wis.  Stats.  1913 
sees.  1197-1199). 

I.  That  the  plaintiff  claims  title  to  the  following  described 
lands  and  premises,  to-wit  [describe  same]  under  and  by  virtue 
of  a  certain  tax  deed  made,  executed  and  delivered  to  the 

plaintiff,  pursuant  to  law,  on  the  ....  day  of ,  19. ., 

by  the  county  clerk  of  said  county  of [or  other  officer, 

as  the  fact  may  be],  of  which  deed  a  true  copy  is  hereto  an- 
nexed, marked  Exhibit  A,  and  made  a  part  of  this  complaint. 

II.  That  the  defendants  C . . . .  D  .  . .  .  and  E .  .  . .  F . . . . 
were  the  former  owners  of  said  tracts  described  in  said  deed, 
and  the  defendants  G . . . .  H . . . .  and  J . . . .  K . . . .  claim, 
under  said  former  owners,  to-wit,  the  said  G....  H.... 
claims  [describe  parcel]  under  the  defendant  C. . . .  D . . . . 
and  the  defendant  J....  K....  claims  [describe  parcel] 
under  the  defendant  E . . . .    F . .  . . 

III.  That  the  plaintiff  has  paid  in  taxes  on  said  premises 
as  follows  [here  specify  amount  of  taxes  paid  by  plaintiff, 
including   redemptions,    stating   dates   of  payment]. 

WHEREFORE  the  plaintiff  demands  judgment  against 
said  defendants  that  they  be  barred  of  all  right,  title,  interest 
or  claim  in  said  lands,  or  any  part  thereof,  and  for  the  costs 
and  disbursements  of  this  action. 

1651.  Petition  in  action  to  quiet  title  (Iowa  Ann.  Code 

1897  sees.  4223,  4224). 

[Title.] 

To  Said  Court: 

For  cause  of  action,  the  plaintiff  herein  avers: 

I.  That  the  plaintiff  now  and  ever  since  on  or  about 

19.  .,  has  been  the  owner  in  fee  simple  of  all  the 

real  estate  hereinafter  described. 

II.  That  plaintiff  now  has  the  actual,  exclusive  and  ad- 
verse possession  of  all  said  lands,  and  that  plaintiff  and  the 
parties  under  whom  he  claims  title  and  holds  possession  as 
herein  stated,  have  had  and  held  said  real  estate  and  the 
actual,  uninterrupted,  exclusive  and  adverse  possession  of  all 

of  the  same  ever  since  on  or  about ,  19 .  .,  in  good  faith 

and  under  claim  of  right  and  color  of  title  thereto. 


Chapter  LXXL]  1101  [Form  1651. 

III.  That  during  the  entire  period  aforesaid  plaintiff  and 
the  parties  under  whom  he  claims  title  and  possession,  paid 
all  the  public  taxes  upon  and  against  said  lands,  and  they 
also  expended  large  sums  of  money  for  said  property  and  for 
fixtures  and  appurtenances  thereon  and  in  making  perma- 
nent, necessary  and  valuable  improvements  upon  said  real 
estate,  and  no  part  of  said  taxes  or  sums  of  money  have  ever 
been  refunded,  paid,  nor  tendered  by  any  of  said  defendants. 

IV.  That  a  full  and  true  description  of  all  the  real  es- 
tate mentioned  and  involved  in  this  action  is  given  in  a 
"Statement"  "Exhibit  A",  annexed  hereto  and  made  part 
of  this  petition,  and  to  which  reference  is  now  directed. 

V.  That  plaintiff  is  credibly  informed  and  believes  that 
the  defendants  herein  claim  title  to  said  real  estate  and  that 
the  said  defendants  make  some  claim  adverse  to  the  estate 
and  to  the  title  and  possession  of  your  petitioner  as  aforesaid 
in  and  to  said  lands. 

VI.  The  adverse  claims  of  the  defendants  herein  to  your 
petitioner's  estate  as  aforesaid  and  in  the  interest  such  per- 
sons have  or  claim  to  have  in  and  to  said  real  property,  and 
how  the  same  w^ere  derived  or  are  claimed  to  have  been  de- 
rived as  exactly  as  possible  and  to  the  best  of  plaintiff's 
information  and  belief,  are  as  follows,  to-wit:  [state  claims 
made  by  defendants]. 

VII.  That  in  this  action  it  is  necessary  to  make  unknown 
persons  defendants  for  the  reason  that  the  names  and  resi- 
dence of  such  persons  are  unknown  to  plaintiff  and  that 
plaintiff  sought  diligently  to  learn  the  names  and  residences 
of  said  persons  and  defendants  without  ascertaining  the  same 
wherefore  it  is  asked  that  proceedings  may  be  had  against 
such  persons  without  naming  them  as  provided  by  the  laws 
of  this  state. 

VIII.  Plaintiff  alleges  in  relation  to  said  alleged  and  ad- 
verse claims  and  interests  on  the  part  of  said  defendants  and 
in  denial  thereof  state  as  follows,  to-wit:  [state  the  facts  as 
claimed  by  plaintiff]. 

IX.  That  any  and  all  such  claims  or  interests  upon  the 
part  of  each  and  all  of  the  defendants  to  this  action  are 
inferior  and  wholly  subject  to  the  prior  and  paramount  title 
and  possession  of  the  plaintiff  herein,  in  and  to  said  real 
estate,  and  this  court  is  asked  to  so  find,  and  decree. 


Form  1651.]  1102  [Chapter  LXXI. 

X.  The  plaintiff  files  and  submits  herewith  an  "Abstract 
of  Title"  to  said  lands  with  statements  and  memoranda  there- 
on which  show  all  the  necessary  facts,  records,  conveyances, 
description  of  lands,  and  other  things  required  by  law  to 
make  and  vest  in  your  petitioner  a  full  and  unqualified  title 
in  fee  simple  in  and  to  all  the  aforesaid  real  estate  and  this 
court  is  asked  to  carefully  examine  the  same  and  thereupon 
to  find,  adjudge  and  decree  that  plaintiff's  title  to  and 
possession  of  said  lands  are  as  herein  stated,  and  as  shown 
and  claimed  upon  said  abstracts  under  and  by  virtue  of  the 
evidence,  proofs  and  the  testimony  of  witnesses  to  be  offered 
and  considered  upon  the  hearing  and  trial  of  this  action,  and 
that  the  clerk  of  this  court  be  ordered  and  required  to  attach 
his  official  certificate  to  said  abstracts  indicating  the  findings, 
adjudication  and  decree  aforesaid  and  return  said  abstracts 
with  said  certificate  annexed  to  plaintiff. 

WHEREFORE  plaintiff  prays  that  upon  final  hearing  it 
be  further  found,  adjudged  and  decreed  that  the  several 
allegations  of  this  petition  are  true  and  that  plaintiff  have 
judgment  and  decree  in  accordance  therewith  and  that 
plaintiff's  title  to,  and  possession  of  all  said  real  estate  to  the 
extent  and  in  the  manner  claimed  in  this  petition  be  deter- 
mined, established,  confirmed,  and  quieted  in  the  plaintiff 
in  this  action,  his  heirs,  successors  and  assigns,  forever 
•against  all  adverse  claims  upon  the  part  of  each  and  all  of 
the  defendants  in  this  cause  and  as  against  all  persons  who 
may  now  or  hereafter  claim  under  or  through  them  or  either 
of  them;  and  that  all  apparent  imperfections,  or  clouds  upon 
plaintiff's  title  to  said  land  be  now  and  forever  removed,  and 
that  the  title  and  possession  of  said  premises  be  decreed  firm 
and  effectual  forever  in  plaintiff,  and  that  all  said  defendants 
be  barred  and  forever  estopped  from  having  or  claiming 
any  right  or  title  in  or  to  said  real  estate  adverse  to  the 
plaintiff  herein. 

L,...  M.... 
Attorney  for  Plaintiff. 
[Venue.] 

I,  A. . . .  B ,  on  oath,  depose  and  say  that  I  am  the 

plaintiff  in  this  action,  and  that  the  above  and  foregoing 
petition  and  Exhibit  A,  description  of  lands  annexed,  have 
been  read  to  me  and  that  I  have  also  examined  and  read  the 
abstracts  of  titles  and  statements  referred  to  in  said  petition, 


Chapter  LXXL]  1103  [Forms  1652,  1653. 

and  understand  and  know  the  contents  of  said  petition,  Ex- 
hibit A,  and  abstracts,  and  this  affiant  believes  the  statement 
thereof  to  be  true. 

A....   B.... 
[Jurat] 

"STATEMENT"  AND  "EXHIBIT  A" 

The  following  is  a  full  and  true  description  of  all  the  real 
estate  mentioned  and  involved  in  this  action;  and  referred 
to  in  paragraph  IV  in  the  foregoing  petition,  to-wit:  [Insert 
description]. 

1652.  Complaint  by  tax  certificate  holder  to  quiet  title 

(Minn.  Gen.  Stats.  1913  sec.  2168). 

I.  That  the  plaintiff  is  the  owner  and  holder  of  a  certain 
tax  certificate  issued  by  the  auditor  of county,  Minn- 
esota, dated  the  ....  day  of ,  19. .,  a  copy  of  which 

certificate  is  attached  to  this  complaint,  marked  "Exhibit 
A",  and  that  the  period  of  redemption  from  the  tax  sale  upon 
which  such  certificate  was  issued  expired  on  the  ....  day  of 
,  19. .,  and  prior  to  the  commencement  of  this  action. 

II.  That  the  lands  and  premises  covered  by  the  said  tax 

certificate  are  situated  in  the  city  of ,  in  said  county 

and  state,  and  are  described  as  follows:  [insert  description], 
and  that  the  same  are  in  the  possession  of  the  defendant 
C...  D.... 

III.  That  the  defendants  above  named  claim  to  have  an 
interest  in  said  premises  or  a  lien  thereon  adverse  to  the 
plaintiff. 

WHEREFORE  plaintiff  demands  judgment  that  he  is 
the  owner  in  fee  of  said  premises  and  that  the  defendants 
have  no  estate  or  interest  therein  or  lien  thereon,  with 
costs. 

1653.  Outline  of  complaint  to  have  mortgage  cancelled 

for  duress. 

I.  [Allege  plaintiff's  ownership  of  the  mortgaged  premises 
describing  same.] 

II.  [Allege  the  circumstances  leading  up  to  the  alleged 
duress,  as  for  instance  that  plaintiff's  son  was  employed  by  the 
defendant  and  in  such  capacity  entrusted  the  defendant  with 


Form  1653.]  1104  [Chapter  LXXI. 

the,  custody  of  money  and  property  and  in  the  course  of  said 
employment   misappropriated   certain    of  such   moneys.] 

III.  [Allege  the  arrest  of  plaintiff's  son,  and  the  threats  made 
to  plaintiff  by  defendant  that  if  the  moneys  were  not  repaid  he 
would  cause  the  conviction  of  the  plaintiff's  son  and  his  im- 
prisonment in  the  states  prison.] 

IV.  [Allege  the  effect  of  the  threats  on  the  plaintiff,  showing 
that  they  caused  a  loss  of  his  will  power,  as  for  instance]: 
that  plaintiff,  being  greatly  terrified,  frightened  and  shocked, 
and  fearing  that  the  defendant  would  procure  the  conviction 
and  imprisonment  of  his  said  son,  and  thereby  entail  shame, 
disgrace  and  mortification  upon  himself  and  his  family,  and 
ruin  and  distress  upon  his  son,  became  nervous,  excited  and 
greatly  distressed,  both  in  body  and  mind,  and  for  a  con- 
siderable time  entirely  lost  the  control  of  his  will. 

V.  That,  while  in  this  condition,  defendant  informed  the 
plaintiff  that  unless  he  should  execute  a  bond  and  mortgage 
upon  said  premises  as  security  for  the  payment  to  defendant 
of dollars  he  would  procure  the  conviction  and  im- 
prisonment of  the  plaintiff's  said  son,  and  the  plaintiff 
thereupon,  while  under  the  influence  of  the  coercion,  fear, 
and  duress  created  by  said  threats,  executed  and  delivered  to 
the  defendant  a  bond  and  mortgage  [describe  same]. 

VI.  [Allege  the  recording  of  the  mortgage  and  the  fact  that 
defendant  is  about  to  enforce  the  same  or  assign  it  to  innocent 
third  parties  as  the  fact  may  be.] 

WHEREFORE,  etc.  [Demand  of  judgment  for  cancella- 
tion and  release  of  the  mortgage,  and  injunction  against  its 
sale   or  negotiation.] 


CHAPTER  LXXn. 

COMPLAINTS  IN  CREDITORS'  ACTIONS  TO  REACH 

NON-LEVIABLE  ASSETS  OR  PROPERTY 

FRAUDULENTLY  CONVEYED. 


1654.  Complaint  by  judgment  cred- 

itor to  set  aside  fraudulent 
conveyance  of  real  estate, 
general  form. 

1655.  The    same,    where    plaintiff 

sues  on  behalf  of  himself 
and  other  judgment  cred- 
itors. 

1656.  The  same,  upon  a  justice's 

judgment. 

1657.  Against  debtor  to  reach  de- 

mands due  from  third  per- 
sons. 

1658.  Against  the  j  udgment-debtor, 

his  assignee,  and  a  pre- 
tended creditor  named  in 
the  assignment,  to  set 
aside  a  general  assignment 
for  fraud  extrinsic  to  the 
instrument. 

1659.  To  set  aside  an  assignment 

which  is  void  on  its  face. 

1660.  Against  debtors  who  trans- 

ferred their  assets  to  a 
third  person  for  his  note, 
and  assigned  the  note  for 
benefit  of  creditors,  seek- 
ing to  set  aside  the  transac- 
tion as  fraudulent,  and  for 
a  receiver. 

1661.  Against  debtor  and  his  trus- 

tee, to  reach  the  trust  fund 
or  its  income. 

1662.  By  an  assignee  of  a  judg- 

ment, against  the  judg- 
ment debtor  and  his  mort- 
gagee of  personal  property 
and  an  assignee  to  whom, 
by  a  fraudulent  agreement 


between  them,  the  debtor's 
property,  including  the 
mortgaged  property,  had 
been  transferred. 

1663.  Against  judgment-debtor  and 

one  to  whom  he  fraudu- 
lently confessed  judgment 
to  set  aside  judgment  and 
sale  thereunder. 

1664.  Complaint  by  two  creditors 

suing  together,  against 
debtor  and  his  fraudulent 
grantee,  to  set  aside  con- 
veyance of  real  estate. 

1665.  By  attaching  creditor  in  aid 

of  writ  of  attachment 
against  fraudulent  grantee, 
to  set  aside  deed  of  real 
estate. 

1666.  By  judgment  creditor  against 

debtor  and  fraudulent 
grantee,  to  set  aside  fraud- 
ulent transfer  of  personal 
property. 

1667.  By  judgment  creditor  against 

the  debtor,  his  wife,  two 
other  fraudulent  grantees 
of  personal  property,  and 
a  banking  corporation,  to 
reach  concealed  personal 
property  and  moneys. 

1668.  By  judgment  creditor  to  set 

aside  conveyance  made 
prior  to  the  creation  of  the 
indebtedness  due  to  the 
plaintiff. 

1669.  By  creditor  to  reach  salary 

due  the  debtor. 


Introduction.] 


1106 


[Chapter  LXXII. 


1670.  By    judgment    creditor,    to 

reach  royalties  falling  due 
from  publishers  to  the 
debtor  under  a  contract. 

1671.  By   assignee  in   bankruptcy 

to  recover  unlawful  prefer- 
ence, or  its  value. 

1672.  By  administrator  or  executor, 

to  reach  property  fraudu- 
lently conveyed  by  his 
intestate  or  testator. 

1673.  By  creditor  against  adminis- 

trator and  grantee  of  de- 
deased  debtor,  when  estate 
is  insufficient  to  pay  claims 
proven. 

1674.  By     creditor     of     deceased 

debtor,  to  reach  land  pur- 
chased by  the  debtor,  but 
conveyed  to  a  third  person 
in  fraud  of  creditors. 

1675.  Complaint    by    a    judgment 

creditor  against  insolvent 
corporation  and  its  officers, 
to     reach     unpaid     stock 


subscriptions  and  corpo- 
rate assets  fraudulently 
conveyed  by  the  officers  to 
themselves. 

1676.  By    judgment    creditor    to 

enforce  resulting  trust  in 
land  purchaser  by  debtor 
and  conveyed  to  a  third 
person. 

1677.  Outline  of  complaint  against 

agent  wrongfully  taking 
title  of  real  estate  in  his 
own  name. 

1678.  By    judgment     creditor    to 

reach  proceeds  of  real 
property  in  hands  of  fraud- 
ulent grantee,  where  such 
grantee  has  conveyed  to  a 
bona  fide  purchaser. 

1679.  By  receiver  of  building  asso- 

ciation against  withdraw- 
ing members  for  contribu- 
tion. 

1680.  By   sheriff   suing  in   aid   of 

attachment. 


Where  tangible  personal  property  which  is  subject  to  levy 
and  sale  on  execution  has  been  transferred  by  a  debtor  in 
fraud  of  creditors,  it  may  be  seized  by  attachment  or  levied 
upon  and  sold  under  an  execution,  and  in  such  case  it  will 
be  unnecessary  for  the  creditor  to  bring  any  action  to  set 
aside  the  alleged  fraudulent  sale  or  transfer.  The  sale  upon 
execution  will  carry  the  title  and  possession,  and  if  the 
fraudulent  grantee  desires  to  test  the  validity  of  his  title  he 
will  be  compelled  to  bring  an  action  of  trespass,  replevin  or 
trover,  in  which  action  the  purchaser  may  by  answer  set 
up  the  fraudulent  character  of  the  plaintiff's  title. 

Generally  in  the  states  covered  by  this  work  such  property 
as  non-leviable  assets  in  the  possession  of  the  fraudulent 
grantee  may  be  reached  by  garnishment.  See  the  statutes 
on  garnishment  in  the  various  states  cited  in  the  notes  to 
Chapter  XI  of  this  work.  Such  is  the  rule  in  most  juris- 
dictions in  the  absence  of  statute.  Am.  &  Eng.  Ency.  of 
Law,  vol.  14,  pp.  790,  791  and  notes;  Bank  v.  Council  Bluffs 
F.  Co.,  89  Iowa.  618;  57  N.  W.  444;  N.  S.  B.  &  S.  Co.  v. 
Ladd,  32  Minn.  38;  20  N.  W.  334. 


Chapter  LXXIL]  1107  [Introduction. 

In  case  of  the  fraudulent  transfer  of  real  estate  a  creditor, 
after  having  obtained  judgment  and  issued  execution,  may 
generally  maintain  an  action  in  equity  to  remove  the  fraudu- 
lent obstruction  to  the  satisfaction  of  his  judgment  by  a 
decree  declaring  the  transfer  void.  This  is  a  creditors' 
action  in  aid  of  execution  simply,  and  is  for  the  benefit  of  the 
creditor  who  brings  the  action,  and  none  others.  After  the 
return  of  an  execution  unsatisfied  he  may  bring  an  action 
to  set  aside  fraudulent  conveyances  or  incumbrances  on 
real  estate,  or  to  reach  non-leviable  assets  which  the  debtor 
refuses  to  apply  to  the  payment  of  his  debt,  and  the  relief 
sought  should  include  provisions  for  the  satisfaction  of  the 
debt  out  of  the  property  fraudulently  conveyed  or  concealed. 
Personal  property  which  is  leviable  in  its  character,  but  which 
has  been  fraudulently  conveyed,  may  in  some  jurisdictions 
be  reached  in  the  same  manner,  if  it  appears  that  the  creditor 
will  be  seriously  embarrassed  and  the  property  sacrificed 
by  attempting  to  enforce  the  remedy  at  law.  Gullickson  v. 
Madsen,  87  Wis.  19;  57  N.  W.  965.  See  generally  on  this  sub- 
ject Wis.  Stats.  1913  sees.  3029-3186;  Gates  v.  Boomer,  17 
Wis.  455;  Cornell  v.  Radway,  22  Wis.  260;  Evans  v.  Laugh- 
ton,  69  Wis.  138;  33  N.  W.  573;  Alhhauser  v.  Doud,  74  Wis. 
400;  43  N.  W.  69;  Gilbert  v.  Laughton,  69  Wis.  138;  33  N.  W. 
573;  Pierstorff  v.  Jorges,  86  Wis.  128;  65  N.  W.  735.  This 
action  is  for  the  benefit  of  all  creditors  similarly  circum- 
stanced, except  that  specific  liens  which  have  been  obtained 
by  judgment  or  otherwise  will  be  preserved. 

In  Minnesota,  in  order  to  reach  land  fraudulently  con- 
veyed it  is  necessary  that  the  creditor  first  obtain  judgment, 
and  docket  it  in  the  county  where  the  land  lies;  the  issuance 
of  execution  is  unnecessary.  Minn.  Gen.  Stats.  1913  sec. 
7013;  Massey  v.  Gorton,  12  Minn.  145;  Scanlan  v.  Murphy, 
51  Minn.  536;  53  N.  W.  799.  But  in  an  action  to  reach 
equitable  assets  an  execution  must  first  have  been  issued  and 
returned  unsatisfied.  Wadsworth  v.  Schisselbauer,  32  Minn. 
84;  19  N.  W.  390. 

In  Iowa,  under  Iowa  Code  1897  sec.  4087,  the  action,  or 
equitable  proceeding  as  it  is  there  called,  may  be  brought  at 
any  time  after  judgment.  No  mention  is  made  of  the 
issuance  or  return  of  execution,  but  it  is  doubtless  safer  that 
such  steps  be  taken  and  alleged  in  the  petition. 


Form  1654.]  1108  [Chapter  LXXII. 

Such  an  action  can  in  no  case  be  brought  by  a  mere  cred- 
itor at  large  who  has  not  recovered  judgment,  unless  by  virtue 
of  some  special  statutory  provision.  There  are  various  pro 
visions  authorizing  the  maintenance  of  such  actions  by  re- 
ceivers, assignees,  administrators,  and  other  officers,  on 
behalf  of  creditors;  when  so  brought,  the  complaint  must  of 
course  allege  the  representative  character  of  the  plaintiff, 
and  the  taking  of  such  steps  as  may  be  made  necessary  by 
the  particular  statute  to  authorize  the  maintenance  o  the 
action. 

The  action  may  be  brought  against  corporations  and  their 
fraudulent  grantees,  but  it  is  held  in  Wisconsin  in  case  of 
domestic  corporations  that  if  a  judgment  creditor  subse- 
quently brings  action  to  sequestrate  the  property  of  the 
corporation  under  Wis.  Stats,  1913  sees.  3216-3228,  the 
previous  action  will  be  enjoined  under  sec.  3227.  Pierce 
v.  Mill  Construction  Co.,  38  Wis.  253. 

The  statutes  relating  to  the  subject  in  other  states  are 
cited  in  the  note.^ 

1654.    Complaint  by  judgment  creditor  to  set  aside  fraud- 
ulent conveyance  of  real  estate,  general  form. 

I.  That  on  the.... day  of ,    19..,   in   an   action 

then  pending  in  the court  of  the  county  of 

state  of a  judgment  was  duly  rendered  and  given  by 

said  court  in  favor  of  this  plaintiff  and  against  the  defendant 

C ....  D ... .  for  the  sum  of dollars,  which  judgment 

was  founded  upon  a  claim  which  accrued  prior  to  the  con- 
veyance hereinafter  set  forth. 

II.  That  on  said  day  [or  on  the.  . .  .day  of ,  19. .] 

said  judgment  was  duly  docketed  in  the  office  of  the  clerk  of 

court  for  the  county  of wherein  said  defendant  C . . . . 

D . . . .  then  resided. 

III.  That  on  the. . . .  day  of ,  19. .,  an  execution 

was  duly  issued  out  of  said  court  against  the  personal  and 
real  property  of  said  defendant  C . . . .  D . . . . ,  and  delivered 

lArk.   Dig.   of   Stats.    1904  sec.      Mo.  R.  S.  1909  sec.  2344;  N.  Dak. 


6297;  Cal.  C.  G.  P.  1906  sec.  720 
Colo.  Code  Ann.  1911  sec.  270 
Idaho  Rev.  Codes  1908  sec.  4510 
Mont.  Rev.  Code;  1907  sec.  6129 


Rev.  Codes  1905  sec.  6639;  S.  Dak. 
C.  C.  1908  sec.  2370;  Okla.  Comp. 
Laws  1909  sec.  2934;  Wyo.  Comp. 
Stats.  1910  sec.  4786. 


Chapter  LXXIL]  1109  [Forms  1655,  1656. 

to  the  sheriff  of  the  county  of wherein  said  defendant 

then  resided;  and,  that  said  execution  was,  on  the  ....  day 

of ,  19. .,  returned  by  said  sheriff  wholly  unsatisfied 

[or,  satisfied  as  to  the  sum  of dollars  and  unsatisfied 

as  to  the  remainder  of  said  judgment]. 

IV.  That  said  judgment  is  still  owned  by  plaintiff,  and 
that  there  is  now  actually  and  equitably  due  thereon  the 
sum  of dollars. 

V.  That  on  the  ....  day  of ,  19. .,  the  defendant 

C . . . .  D .  .  . .  conveyed  to  the  defendant  E . . . .  F . . . .  the 
following   described   real    property    [describe  property]. 

VI.  That  the  defendant  C . . . .  D . . . .  made  said  con- 
veyance [without  consideration  and]  with  intent  to  hinder, 
delay  and  defraud  plaintiff  in  the  collection  of  his  claim, 

and  the  same  was  received  by  the  defendant  E. . . .  F 

with  full  knowledge  of  such  intent. 

[In  Wisconsin  insert  before  demand  for  judgment:  VII, 
That  this  action  is  not  commenced  or  prosecuted  by  col- 
lusion with  the  said  C . . . .  D . . . .  or  for  the  purpose  of 
protecting  the  property  or  effects  of  the  said  C .  .  .  .  D . . ,  . 
against  the  claims  of  other  creditors,  but  for  the  sole  pur- 
pose of  compelling  payment  and  satisfaction  of  the  plaintiff's 
own  debt.     Wis.  C.  C.  Rule  XXVII  sec.  2.] 

WHEREFORE  plaintiff  demands  judgment  that  the  said 
conveyance  from  the  said  C .  .  .  .  D .  .  . .  to  the  said  E . . .  . 
F. . . .  be  adjudged  null  and  void;  that  the  said  lands  may  be 
sold  as  provided  by  law,  and  the  proceeds  of  such  sale  be 
applied  to  the  payment  of  the  plaintiff's  said  judgment; 
and  for  such  other  relief  as  may  be  equitable. 

1655.  The  same,  where  plaintiff  sues  on  behalf  of  him- 

self and  other  judgment  creditors. 

The  plaintiff,  complaining  on  behalf  of  himself  and  all 
other  judgment  creditors  of  the  defendant  [whose  executions 
have  been  returned  unsatisfied,  and]  who  shall  in  due  time 
come  in  and  seek  relief  by,  and  contribute  to  the  expenses  of 
this  action,   alleges: 

I.     [Proceed  substantially  as  in  last  preceding  form.] 

1656.  The  same,  upon  a  justice's  judgment. 

I.     That  on  the  ....  day  of ,  19 . .,  at before 


Form  1657.]  1110  [Chapter  LXXII. 

M. . . .  N. . . .  a  justice  of  the  peace  in  and  for  the  town  of 

,  the  plaintiff  recovered  a  judgment,  which  was  duly 

given  by  said  justice,  against  the  defendant  C. . . .  D, . . . 

for dollars  damages  and dollars  costs,  in  an 

action  wherein  this  plaintiff  was  plaintiff  [or,  defendant], 
and  the  defendant  herein  was  defendant  [or,   plaintiff]. 

II.  That  on  the  ....  day  of ,  19 .  .,  a  transcript  of 

the  same  was  filed  and  docketed  in  the  ofTice  of  the  clerk  of 

the  county  of [if  the  judgment  debtor  resided  in  another 

county,  add:  and  on  the  ....  day  of ,  19. .,  a  trans- 
cript of  the  same  was  filed  and  docketed  in  the  office  of  the 

clerk  of  the  county  of ]  in  which  county  the  defendant 

then  resided  [or  state  ignorance  of  residence,  etc.,  as  in  Form 
1657]. 

III.  That  on  the  ....  day  of ,  19 . .,  an  execution 

in  due  form  was  issued  upon  the  said  judgment  against  the 
personal  and  real  property  of  the  defendant,  to  the  sheriff  of 
said  [last-mentioned]  county,  in  which  county  the  defendant 
then  resided. 

[Continue  as  in  Form  1654.] 

1657.    Against  debtor  to  reach  demands  due  from  third 
persons. 

I.  That  on  the  ....  day  of ,  19 . . ,  at in  the 

court  in  and  for  the  county  of state  of 

the  plaintiff  recovered  a  judgment  which  was  duly  given  by 
said  court  against  the  defendant  [if  there  were  other  Judgment 
defendants  add:  and  M  . . . .  N . . . .  and  0 . . . .  P. . . .]  for 
dollars  in  an  action  wherein  this  plaintiff  was  plain- 
tiff [or  defendant]  and  the  defendant  herein  was  [or  the  de- 
fendant herein  and  said  M  . . . .  N . . . .  and  0 . . . .  P . . . . 
were]  defendant  [or  plaintiff] ;  and  that  on  the  same  day  [or, 

the  ....  day  of 19.  .]  said  judgment  was  docketed 

in  the  office  of  the  clerk  of  said  county  [and  on  the  ....  day 
of ,  19. .,  a  transcript  thereof  was  filed,  and  the  judg- 
ment docketed  in  the  county  of ]. 

II.  That  on  the  ....  day  of ,  19 . . ,  an  execution  in 

due  form  was  issued  upon  the  said  judgment  against  the 
personal  and  real  property  of  [all  said  debtors]  to  the  sheriff 
of  said  [last-mentioned]  county,  in  which  county  the  defend- 
ant then  resided  [or,  in  which  county  was  the  defendant's 


Chapter  LXXIL]  1111  [Form  1657. 

last  known  residence  within  this  state,  his  residence  at  the 
time  of  said  execution  being  unknown  to  the  plaintiff,  and 
not  ascertainable,  though  the  plaintiff  made  diligent  inquiry 
therefor];  [or  say:  in  which  county  was  the  defendant's 
residence  at  the  time  of  bringing  said  action,  his  residence  at 
the  time  of  said  execution  being  unknown  to  the  plaintiff, 
and  not  ascertainable,  though  the  plaintiff  made  diligent 
inquiry    therefor], 

III.  That  said  execution  has  been  returned  by  said  sheriff 
wholly  unsatisfied  [or,  unsatisfied  except  as  to  the  sum  of 

dollars]  and  there  is  now  actually  and  equitably  due 

to  the  plaintiff  on  said  judgment dollars,  with  inter- 
est from  the  ....  day  of ,  19 . . 

IV.  That  a  short  time  before  the  commencement  of  the 
action  in  which  said  judgment  was  obtained,  and  after  the 
indebtedness  on  which  said  judgment  is  based  had  accrued, 
said  defendant  was  and  for  several  years  previous  thereto 

had  been  engaged  in  the  mercantile  business  at and 

[as  plaintiff  is  informed  and  believes]  various  persons  became 
indebted  to  him  in  large  amounts;  that  although  the  said 
defendant,  about  the  time  or  soon  after  the  commencement 

of  this  action,  to-wit,  about  the  ....  day  of ,  19. ., 

did  assign  and  transfer  all  his  stock  in  trade  to  one  ]VI . .  . . 
N. . . .,  yet  the  said  business  is  still  wholly  unsettled;  and 
that  the  defendant  had  at  the  time  of  the  commencement  of 
this  action  debts  due  him  to  a  large  amount,    to-wit,  to  an 

amount  not  less  than dollars,  a  considerable  portion 

of  which  are  evidenced  by  charges  on  his  books  of  account, 
which  the  said  defendant  refuses  to  produce,  or  allow  to  be 
examined  by  or  on  behalf  of  the  plaintiff;  and  the  plaintiff 
is  therefore  unable  to  specify,  and  cannot  learn,  and  does 
not  know,  the  particular  items  or  amounts  of  said  indebted- 
ness, or  the  names  of  the  several  persons  from  whom  the 
same  are  due;  but  is  informed  and  believes  that  several  of 
them,  owing  the  defendant  in  the  aggregate  a  sum  not  less 

than   dollars,  reside  at and  are  solvent  and 

able  to  pay  the  respective  demands  against  them. 

V.  [Where  a  debtor  in  the  judgment  is  not  made  a  defend- 
ant in  this  action  because  of  insolvency  or  absence,  add]:  That 
snid  [insolvent  or  absentee]  is  wholly  insolvent  and  destitute 
of  pioperty  [or,  is  not  and  has  not  been  for  the  space  of  .... 


Form  1657.]  1112  [Chapter  LXXII. 

within  this  state,  but  resides  at in  the  state  of 

and  has  no  property  within  this  state. 

VI.  [Where  a  debtor  in  the  judgment  is  not  made  a  defend- 
ant because  he  was  merely  a  surety,  add]:  That  the  said  judg- 
ment was  recovered  in  an  action  [describing  it,  e.  g.,  thus]: 
brought  to  foreclose  a  mortgage  made  by  the  defendant  to 
said  [surety]  with  a  bond  collateral  thereto,  and  that  said 
bond  and  mortgage  was  assigned  to  the  plaintiff  by  the 
said  [surety]  who  thereupon  guaranteed  the  payment  thereof; 
but  the  same  not  being  paid,  and  the  mortgaged  premises 
being  sold  upon  foreclosure  in  said  action  for  less  than  the 
sum  due,  said  judgment  was  recovered  for  the  deficiency, 
as  to  which  the  said  [surety]  was  merely  a  surety,  and  not 
liable  as  a  principal  debtor,  and  w^hich  it  was,  by  a  provision 
in  said  judgment,  directed  should  be  levied  of  the  property 
of  the  defendant  [principal  debtor]  if  it  could  be  so  collected; 
and  if  it  could  not,  then  to  be  levied  of  the  property  of  said 
[surety]. 

VII.  [In  Wisconsin  add  allegation  negativing  collusion  with 
the  debtor,  as  in  Form  1654.] 

WHEREFORE  the  plaintiff  demands:  (1)  That  the  said 
defendant  be  adjudged  to  apply  to  the  payment  of  the 
amount  of  said  judgment  and  interest  thereon,  together 
with  the  costs  of  this  action,  said  property,  debts,  choses  in 
action,  and  equitable  interests  belonging  to  him,  or  held  in 
trust  for  him,  or  in  which  he  is  in  any  way  or  manner  bene- 
ficially interested.  (2)  That  he  be  enjoined  from  selling, 
transferring,  or  interfering  with  said  property,  debts,  things 
in  action,  and  equitable  interests.  (3)  That  he  be  pro- 
hibited from  making  an  assignment,  or  confessing  any 
judgment,  to  enable  other  creditors  or  persons  to  obtain  a 
preference  over  plaintiff,  or  to  take  any  portion  of  defendant's 
property.  (4)  That  a  receiver  may  be  appointed  of  all 
said  property,  equitable  interests,  things  in  action,  and  ef- 
fects of  the  said  defendant,  and  said  defendant  directed  to 
execute  to  him  an  assignment  thereof,  and  said  receiver  sell, 
or  otherwise  dispose  of  the  same,  and  convert  the  same  into 
money,  as  soon  as  may  be,  and  that  said  receiver  apply  so 
much  of  the  proceeds  thereof  as  may  be  necessary  for  that 
purpose,  to  the  payment  of  the  plaintiff's  said  debt,  with 
interest  and  costs  of  this  action. 


Chapter  LXXIL]  1113  [Form  1658. 

1658.  Against  the  judgment-debtor,  his  assignee,  and  a 
pretended  creditor  named  in  the  assignment,  to 
set  aside  a  general  assignment  for  fraud  ex- 
trinsic to  the  instrument. 

I,  II  and  III.  [Allege  judgment  and  issue  and  return  of 
execution,  and  amount  due,  as  in  Form  1654  or  1657.] 

IV.  That  after  the  contracting  of  the  debt  on  which 
aforesaid  judgment  was  recovered,  said  [Judgment-debtor] 
assigned  all  his  property  to  the  defendant  [assignee]  in  trust 
for  the  payment  of  his  debts  [or  made  an  assignment  of  which 
a  copy  is  annexed  as  a  part  of  this  complaint]. 

V.  That  the  said  [assignee]  accepted  the  said  trust,  and. 
has  collected  a  large  sum  of  money  and  other  property  from 
the  assets  of  his  assignors,  amounting  in  all  to  the  value  of 
over dollars. 

VI.  That  the  property  so  assigned  is  of  the  value  of 
dollars. 

VII.  That  the  said  assignment  was  made  by  the  said 
[judgment-debtor]  with  the  intent  to  delay,  hinder,  and  de- 
fraud his  creditors;  that  it  was  not  accompanied  by  an  im- 
mediate and  continued  change  of  possession  of  the  said 
property;  that  ever  since  the  same  was  executed  and  de- 
livered, and  up  to  the  present  time,  the  said  property  has 
remained  in  the  actual  possession  and  under  the  control  of 
said  [judgment-debtor]  who  has  retained  possession  and  con- 
trol thereof  under  the  false  and  fraudulent  pretence  that  he 
is  agent  of  said  [assignee]. 

VIII.  That  the  pretended  indebtedness  set  forth  in  said 
assignment  as  due  from  the  defendant  [judgment-debtor]  to  the 
defendant  [the  preferred  creditor]  is  fictitious;  that,  in  fact, 
no  such  indebtedness  exists,  but  the  same  is  therein  inserted 
for  the  purpose  of  enabling  the  defendant  [judgment-debtor] 
to  distribute  the  proceeds  of  the  goods  passed  under  the  as- 
signment among  his  friends,  and  thereby  to  keep  the  posses- 
sion and  control  thereof  himself. 

IX.  That  the  defendant  [judgment-debtor]  has  not  any 
property  other  than  that  embraced  in  the  assignment  afore- 
said, out  of  which  the  execution  aforesaid  could  be  satisfied 
in  whole  or  in  part;  and  that  unless  the  said  property  can 
be  reached  and  applied  to  the  payment  of  said  judgment, 
the  same  must  remain  wholly  unpaid. 


Forms  1659,  1660.]  1114  [Chapter  LXXII. 

X.  [In  Wisconsin  add  allegation  negativing  collusion,  as 
in  Form  1654.] 

WHEREFORE  the  plaintiff  demands  judgment:  (1)  That 
said  assignment  be  adjudged  fraudulent  and  void  as  against 
the  plaintiff  [and  such  other  judgment-creditors  of  said 
judgment-debtor  as  shall  elect  to  come  in  and  share  the  ex- 
penses of  this  action].  (2)  That  a  receiver  of  all  the  prop- 
erty and  effects  of  said  [judgment-debtor]  be  appointed. 
(3)  That  the  defendants  be  adjudged  to  account  for  all  the 
property  received  by  them  or  either  of  them  under  said 
assignment,  and  for  all  proceeds  arising  from  sale  thereof, 
and  deliver  the  same  to  such  receiver.  (4)  That  the  de- 
fendants be,  in  the  mean  time,  enjoined  from  disposing  of 
any  of  said  property,  or  paying  away  any  of  the  proceeds 
thereof,  or  in  any  wise  interfering  therewith.  (5)  That 
said  receiver  pay,  out  of  the  proceeds  of  said  property,  the 
judgment  aforesaid,  and  the  costs  and  expenses  of  this 
action,  and  hold  the  balance  subject  to  the  further  order  of 
this  court. 

1659.  To  set  aside  an  assignment  which  is  void  on  its 

face. 

I,  II  and  III.  [Allege  judgment  and  issue  and  return  of 
execution,  and  amount  due,  as  in  Form  1654  or  1657.] 

IV.  [Allege  making  of  assignment,  setting  it  forth  or  an- 
nexing it,  as  in  Form  1658,  addding:]  And  the  plaintiff  alleges 
and  submits  that  the  said  instrument  of  assignment  is  fraud- 
ulent and  void  upon  its  face,  for  the  reason  that  [here  set 
forth  specifically  the  grounds  of  invalidity],  and  he  alleges  that 
it  was  made  and  executed  by  the  said  defendant  [assignor] 
[and  accepted  by  the  defendants,  assignees]  with  the  intent 
to  hinder,  delay  and  defraud  the  creditors  of  said  [assignor]. 

[Continue  as  in  other  forms.] 

1660.  Against  debtors  who  transferred  their  assets  to  a 

third  person  for  his  note,  and  assigned  the  note 
for  benefit  of  creditors,  seeking  to  set  aside  the 
transaction  as  fraudulent,  and  for  a  receiver. 

I,  II  and  III.  [Allege  judgment  and  issue  and  return  of 
execution,  and  amount  due,  as  in  Form  1654  or  1657.] 


Chapter  LXXIL]  1115  [Form  1660. 

IV.  That  on  the  . ; . .  day  of ,  19 .  . ,  said  [judgment- 
debtors]  were  booksellers  at doing  business  as  partners 

under  the  finn-name  of  Y . , . .  Z . . . .  &  Co. ;  and  were  pos- 
sessed of  [designating  the  assets,  e.  g.,  thus]:  a  large  stock  of 
books,  stationery,  fancy  articles,  jewelry,  and  musical  pub- 
lications, a  valuable  lease  of  their  store,  No 

street,  having  five  years  to  run,  and  sundry  demands  against 
other  persons;  but  were  insolvent  and  unable  to  pay  their 
creditors  punctually  or  in  full. 

V.  That  on  that  day,  and  after  the  indebtedness  for 
which  the  plaintiff's  judgment  was  recovered  had  accrued, 
the  said  defendants  [judgment-debtors]  in  contemplation  of, 
and  with  full  knowledge  of  their  insolvency,  made  a  pretend- 
ed sale  of  their  said  stock  to  the  defendant  [transferee]  then 
a  clerk  in  their  employ  in  their  said  store,  and  took  in  pay- 
ment therefor  his  promissory  notes  having  several  months 
to  run,  but  for  what  exact  amounts  these  plaintiffs  do  not 
know   and    cannot   state. 

VI.  That  the  defendant  [clerk]  was  wholly  irresponsible, 
and  insolvent,  and  has  no  means  of  paying  his  said  notes 
except  such  moneys  as  he  may  derive  from  the  sale  of  the 
property  transferred  to  him  as  aforesaid. 

VII.  That  thereafter  and  on  the  same  day  the  said  [judg- 
ment-debtors] executed  and  delivered  to  the  defendants  [as- 
signees] an  instrument  in  writing,  of  which  the  following  is  a 
copy  [copy  assignment,  or  say,  of  which  a  copy  is  annexed  as 
a  part  of  this  complaint,  and  annex  a  copy  at  the  end  of  the 
complaint]. 

VIII.  That  the  property  so  assigned  is  of  the  value  of 
about dollars  and  upwards. 

IX.  That  the  said  note  to  the  said  [clerk]  and  the  said  as- 
signment to  [assignee]  were  intended  by  each  and  all  of  the 
aforesaid  defendants  to  be  one  transaction,  and  were  in  fact 
one  transaction,  and  were  intended  and  completed  for  the 
purpose  of  delaying,  hindering,  and  defrauding  the  creditors 
of  said  [judgment-debtors]  by  putting  it  out  of  the  power  of 
such  creditors  to  reach  by  execution,  or  other  due  process  of 
law,  the  stock  and  assets  of  the  said  [judgment-debtors];  that 
such  sale  and  assignment  were  not,  nor  was  either  of  them, 
followed  by  immediate  and  continued  change  of  possession; 
that  ever  since  the  said  sale  was  made,  and  since  said  as- 
signment was  delivered,  and  up  to  the  present  time,  the  said 


Form  1G61.]  1116  [Chapter  LXXII. 

property  has  remained  in  the  actual  possession  and  under 
the  control  of  the  said  [judgment-debtors]  who  have  obtained 
possession  and  control  thereof  under  the  false  and  fraudu- 
lent pretence  that  they  are  agents  of  said  [clerk]. 

[X.  That  said  assignment  is  fraudulent  and  void  upon  its 
face,  for  the  reason  that,  specifying  reason]. 

XL  That  the  defendants  [judgment-debtors]  have  not,  nor 
has  either  of  them,  any  property  other  than  that  embraced 
in  the  sale  and  assignment  aforesaid,  out  of  which  the  exe- 
cution aforesaid  could  be  satisfied  in  whole  or  in  part,  and  that 
unless  the  said  property  can  be  reached  and  applied  to  the  pay- 
ment of  said  judgment,  the  same  must  remain  wholly  unpaid. 

XII.  [In  Wisconsin  insert  allegation  negativing  collusion, 
as  in  Form  1654.] 

WHEREFORE  these  plaintiffs  demand  judgment:  (1) 
That  the  said  sale  by  the  defendants  [judgment-debtors]  to 
the  said  [clerk]  and  said  assignment  by  the  defendants 
[judgment-debtors]  to  the  defendant  [assignee]  may  each  be 
declared  fraudulent  and  void  as  against  these  plaintiffs.  (2) 
That  a  receiver  of  all  the  property  and  effects  of  the  said 
[judgment-debtors]  or  either  of  them,  which  they  or  either  of 
them  had  at  the  time  of  the  said  sale  to  the  defendant 
[clerk]  or  at  any  time  thereafter,  be  appointed.  (3)  That 
the  defendants,  and  each  of  them,  be  adjudged  to  account  for 
all  the  property  received  by  them,  or  either  of  them,  under 
either  the  sale  or  assignment  aforesaid,  and  for  all  proceeds 
arising  from  the  sale  thereof,  and  deliver  the  same  to  such 
receiver.  (4)  That  the  defendants,  and  each  of  them,  be 
in  the  meantime  enjoined  from  disposing  of  any  of  said 
property,  or  paying  away  any  of  the  proceeds  thereof,  or 
in  any  wise  interfering  therewith.  (5)  That  the  said 
receiver  be  directed  to  sell  the  said  property,  or  so  much 
thereof  as  may  be  necessary,  and  to  pay  out  of  the  proceeds 
of  said  property  the  judgment  aforesaid,  and  the  costs  and 
expenses  of  this  action,  and  hold  the  balance  subject  to  the 
order  of  this  court. 

1661.    Against  debtor  and  his  trustee,  to  reach  the  trust 
fund  or  its  income.^ 

I,  II  and  III.  [Allege  judgment  and  execution  and  return 
unsatisfied,  and  amount  due,  as  in  Form  1654.] 


Chapter  LXXIL]  1117  [Form  1662. 

IV.  That  the  defendant  [judgment-debtor]  is  the  benefi- 
ciary under  a  trust  created  by  deed  heretofore  executed  by 
him  [or,  created  by  the  will  of  one  M . . . .  N .  . .  .  deceased] 
of  which  a  copy  is  hereto  annexed  as  a  part  of  this  complaint. 

V.  That  the  fund,  consisting  of  about  the  sum  of 

dollars,  is  now  in  the  hands  of  the  defendant  [trustee]  as  trus- 
tee [or  executor]  and  the  defendant  [judgment-debtor]  is  en- 
titled to  receive,  or  does  receive  annually,  the  sum  of 

dollars  therefrom. 

VI.  [//  it  is  a  trust  under  which  the  creditor  can  only  reach 
surplus  income,  state  facts  to  show  what  it  is,  e.  g.]  that  the  de- 
fendant [judgment-debtor]  is  a  man  without  family,  and  resid- 
ing at where  he  has  been  for  the  last  three  years,  and 

still  is,  boarding,  and  the  sum  of dollars  annually  is 

a  reasonable  sum  for  his  support,  and  that  the  sum  of 

dollars  annually  is  surplus  income;  and  if  the  creditor  is  only 

entitled  to  surplus  accrued,   add:  of  which  surplus    

dollars  is  in  the  hands  of  the  defendant  [trustee]  already  ac- 
crued, but  not  paid  over. 

WHEREFORE  the  plaintiff  asks  that  the  defendants  be 
enjoined  respectively  from  paying  over  and  from  receiving 
said  fund  [or,  so  much  of  said  income  (already  accrued)  as 
is  not  necessary  for  the  support  of  the  defendant  (judgment- 
debtor)  and  his  family]  and  that  the  same  be  applied  to  the 
satisfaction  of  the  plaintiff's  judgment  and  interest,  and  the 
costs  of  this  action. 

1662.  By  an  assignee  of  a  judgment,  against  the  judg- 
ment debtor  and  his  mortgagee  of  personal 
property  and  an  assignee  to  whom,  by  a  fraudu- 
lent agreement  between  them,  the  debtor's  prop- 
erty, including  the  mortgaged  property,  had 
been  transferred. 

I.    That  on  or  about  the   ....  day  of ,  19..,  at 

in  the court,  in  and  for  the  county  of 

one  [plaintiff's  assignor]  recovered  a  judgment  against  [the 
judgment-debtor]  for dollars,  which  was  duly  given  by 

*  See  Scott  v.  Nevius,  6  Duer,  296;  Cruger  v.  Jones,  18  Barb. 
672;  Shillick  v.  Mason,  2  Barb.  Ch.  467;  Bramhall  v.  Ferris,  14  N.  Y. 
79;    Havens   v.    Healy,    15    Barb.       (4  Kern.)  41. 


Form  1662.]  1118  [Chapter  LXXII. 

said  court,  in  an  action  [continue  as  in  Form  1657  to  the  end 
of  paragraph  III]. 

IV.  That  on  the   ....   day  of   ,   19..,  the  said 

[plaintiff's  assignor]  duly  assigned  to  the  plaintiffs  for  a  val- 
uable consideration  said  judgment,  and  all  rights  arising 
therefrom. 

V.  That  the  said  judgment  was  recovered  upon  debts  of 
the  said  [judgment-debtor]  contracted  previous  to  the  making 
of  the  transfer  hereinafter  mentioned. 

VI.  That  the  defendant  [judgment-debtor]  was  a  manufac- 
turer of  blank  books  and  stationery  at and  kept  a 

store  there  stocked  with  blank  books  and  stationery,  and 
factory  stocked  with  machinery  and  stock;  the  value  of  the 

said  stock  in  the  store  being    dollars,   and  of  the 

machinery  and  stock  in  the  factory  being   dollars, 

or  thereabouts,  the  said  machinery  being  subject  to  a  chattel 
mortgage  for dollars,  held  by  the  defendants  [mort- 
gagees] under  the  firm  name  of  S. . . .  T, . . .  &  Co.,  the  said 
W . . . .  V . . . .  being  the  active  and  managing  partner  of 
said  firm. 

VII.  That  subsequent  to  the  contracting  of  said  debts, 
and  about  the  month  of ,  19.  .,  the  said  [judgment- 
debtor]  failed  in  business  and  stopped  payment,  and  in  an- 
ticipation of  the  said  failure,  and  shortly  previous  thereto, 
he  conspired  with  the  defendant  [the  managing  partner  of 
mortgagees]  and  the  defendant  [assignee]  to  dispose  of  his 
property  in  fraud  of  his  creditors,  and  to  conceal  or  cover  up 
the  same,  so  that  his  creditors  could  not  reach  it;  and,  in 
pursuance  of  this  scheme,  and  with  intent  to  delay  and 
defraud  the  said  creditors,  the  said  [mortgagee]  and  [assignee] 
mutually  arranged  and  agreed  that  after  the  transfer  should 
be  made  to  said  [assignee]  as  hereinafter  mentioned,  the  said 
mortgage  should  be  foreclosed,  and  the  property  sold  and 
bid  in  by  the  said  [mortgagee]  and  that  the  deficiency  then 
existing  between  the  amount  of  the  mortgage  and  the  price 
bid  should  be  paid  to  him  by  the  defendant  [assignee] 
and  the  defendants  [debtor,  mortgagee,  and  assignee]  further 
arranged  and  agreed  that  all  the  property  in  the  said  store 
and  factory  should  be  transferred  and  delivered  to  the  de- 
fendant [assignee]  at  the  nominal  price  of   dollars, 

or  thereabouts,  which  the  said  [assignee]  should  pay  in  notes, 
and  [the  debtor]  should  use  in  effecting  favorable  compromises 


Chapter  LXXII.]  1119  [Form  1662. 

with  his  creditors.  And  it  was  further  arranged  and  agreed 
between  the  defendants  that  the  defendant  [assignee]  should 
go  on,  in  his  own  name,  with  the  business  previously  con- 
ducted by  [the  debtor]  and  should  employ  said   [debtor]  as 

managing  agent,  at  a  nominal  salary  of   dollars  a 

year;  that  the  business  should  be  thus  continued  for  two 
years,  to  give  said  [debtor]  an  opportunity  to  buy  up  at  a  low 
rate  the  claims  against  him  held  by  his  creditors,  and  at  the 
end  of  that  time  said  [assignee]  should  pay  over  and  de- 
liver to  the  debtor  all  the  residue  of  said  property  and  effects, 

and  the  proceeds  and  profits  thereof,  after  deducting 

dollars  a  year  for  his  own  compensation  and  the  amount  of 
the  notes  given  as  aforesaid  by  him.  And  it  was  further 
arranged  and  agreed  that  if  the  defendant  [debtor]  could  pro- 
cure a  purchaser  of  said  property  at  a  fair  price,  the  said 
[assignee]  should  sell  the  same  to  such  purchaser  in  his  own 
name,  and  after  making  the  deduction  above  mentioned 
should  pay  over  the  balance  to  said  [debtor]. 

VIII.  That  in  pursuance  of  this   arrangement  the  de- 
fendant [niortgagee]  foreclosed  the  mortgage  and  bought  in  the 

property  at dollars,  and  immediately  transferred  the 

same  to  said  [assignee]  who  paid  him dollars  therefor, 

that  being  the  amount  of  said  mortgage;  which  amount 
the  said  [mortgagee]  received  for,  and  paid  over  to,  the  said 
firm  of  S....  T &  Co. 

IX.  That  also,  in  pursuance  of  said  arrangement,  the 
other  property  of  said  [debtor]  in  the  factory  and  store  was 

transferred  by  him  to  said  [assignee]  for dollars,  paid 

in  notes  as  aforesaid,  who  continued  the  business,  employ- 
ing said  [debtor]  as  managing  agent,  and  the  said  [assignee] 

has  made  a  large  profit  thereon,  and  at  least dollars 

a  year;  and  that  the  said  [assignee]  still  continues  in  said 
business,  and  in  possession  of  the  said  goods  and  property, 
or  the  proceeds  and  profits  thereof. 

X.  [Negative  collusion,  as  in  Form  1654.] 
WHEREFORE   the   plaintiffs   demand   judgment:      (1) 

That  the  transfer  of  his  property  by  the  defendant  [debtor]  to 
the  defendant  [assignee]  may  be  adjudged  fraudulent  and 
void  as  against  the  plaintiffs.  (2)  That  the  said  de- 
fendant [assignee]  be  enjoined  and  restrained  from  selling, 
assigning,  or  in  any  way  disposing  of  the  machinery  and 
stock  in  said  blank  book  manufactory,  transferred  to  him 


Form  1663.]  1120  [Chapter  LXXII. 

by  said  [debtor]  or  said  [mortgagee]  and  the  goods  and  stock 
in  the  store  transferred  to  him  by  said  [debtor]  or  the  proceeds 
and  profits  thereof.  (3)  That  a  receiver  may  be  appointed 
to  take  possession  of  the  said  property,  and  the  proceeds  and 
profits  thereof.  (4)  That  the  said  W . . . .  V . . . .  may  be 
compelled  to  account  to  said  receiver  for  the  profits  of  said 
store  and  manufactory  since  the  said  transfer.  (5)  That 
the  said  [mortgagees]  be  compelled  to  pay  over  to  said  re- 
ceiver   dollars,  being  the  sum  received  by  them  over 

and  above  the  amount  that  the  mortgaged  machinery 
brought  at  the  sale.  (6)  That  the  property  taken  posses- 
sion of  by  said  receiver,  or  collected  by  him,  may  be  sold  and 
appropriated  to  the  payment  of  the  judgment  held  by  the 
plaintiffs.     (7)     And  for  the  costs  of  this  action. 

1663.  Against  judgment-debtor  and  one  to  whom  he 
fraudulently  confessed  judgment,  to  set  aside 
judgment  and  sale  thereunder. 

I,  II  and  III.  [Allege  judgment  and  execution  and  return 
unsatisfied,  and  amount  due,  as  in  Form  1654.] 

IV.  That  prior  to  the  entry  of  said  judgment,  but  after 
the  indebtedness  upon  which  the  said  judgment  was  ren- 
dered had  accrued,  the  said  defendant  [debtor]  authorized  a 

judgment  to  be  entered,  on  confession,  in  the court  for 

county  against  him,  in  favor  of  the  defendant  [fraud- 
ulent creditor]  the  father  of  said  [debtor]  for dollars 

damages  and dollars  costs,  for  a  pretended  indebted- 
ness for  so  much  money  alleged  to  have  been  theretofore  lent 
by  said  defendant  [debtor]  to  said  defendant  [fraudulent 
creditor]. 

V.  That  thereafter,  and  about  the day  of 

19. .,  execution  having  been  issued  upon  the  said  judgment, 
personal  property  of  said  [debtor]  consisting  of  [briefly  de- 
scribing it]  of  the  value  of  dollars  was  thereunder 

sold  by  public  auction  by  the  sheriff  of  the  said  county  of 

and  was  struck  off  to  said  defendant  [fraudulent 

creditor]  at  about dollars,  a  sum  far  less  than  its  real 

value;  who  thereupon  took  possession,  and  is  now  in  pos- 
session of  the  same,  claiming  to  be  the  owner  thereof. 

VI.  That  afterwards,  and  about  the  ....  day  of , 

19. .,  real  property  of  said  [debtor]  consisting  of  [briefly  de- 


Chapter  LXXIL]  1121  [Form  1663. 

scribing  it]  was  sold  by  auction  by  the  sheriff  of  said  county 
under  an  execution  issued  upon  said  judgment,  and  was 
struck  off  to  the  said  defendant  [fraudulent  creditor]  also  at  a 
price  much  below  its  real  value,  his  being  the  highest  bid  for 
the  same ;  and  the  said  sheriff,  thereupon  made  his  certificate 
of  sale  of  the  said  real  estate,  to-wit,  on  the  ....  day  of 

,  19. .,  aforesaid  [and  no  deed  or  conveyance  has  yet 

been  given  by  him,  the  time  for  such  conveyance  having  not 
yet  expired]. 

VII.  That  the  said  last-mentioned  judgment  was  fraud- 
ulently confessed  by  the  said  [debtor]  to  the  said  [fraudulent 
creditor]  and  for  the  purpose  of  covering  up  his  said  property, 
and  defrauding  the  plaintiff  in  the  collection  of  his  demand. 
That  said  defendant  [debtor]  was  not  indebted  to  the  defend- 
ant [fraudulent  creditor];  but  said  judgment  was  confessed 
without  any  consideration,  and  the  sale  of  said  property  was 
made  with  the  intention,  on  the  part  of  both,  of  defrauding 
the  plaintiff  out  of  his  demand,  and  of  transferring  the  os- 
tensible ownership  and  possession  of  the  property  of  said 
[debtor]  liable  to  execution,  to  the  said  defendant  [fraudulent 
creditor]  so  as  to  prevent  the  plaintiff,  or  any  other  creditor, 
from  levying  upon  and  selling  any  part  thereof. 

[VIII.  That  said  real  estate  cannot  be  sold  for  more  than 
about  one-half  the  amount  of  the  plaintiff's  said  judgment; 
and  that  the  said  defendant  [fraudulent  creditor]  is  of  no 
pecuniary  responsibility,  and  is  possessed  of  little  or  no  prop- 
erty other  than  that  so  bid  in  by  him  as  aforesaid,  and  is 
in  embarrassed  circumstances  and  involved  in  debt.] 

IX.     [In  Wisconsin  negative  collusion,  as  in  Form  1654.] 

WHEREFORE  the  plaintiff  demands  judgment  against 
the  defendant:.  (1)  That  the  said  judgment  in  favor  of  the 
defendant  [fraudulent  creditor]  and  the  proceedings  and  sale 
under  it,  and  the  sheriff's  certificate  of  sale,  be  set  aside,  and 
declared  void.  (2)  That  the  said  defendants,  and  each  of 
them,  be  enjoined  from  disposing  of,  transferring,  incumber- 
ing, or  in  any  way  interfering  with  the  said  property,  or  any 
part  thereof;  and  that  a  receiver  be  appointed,  with  the  usual 
powers  and  duties,  to  whom  the  said  defendants  shall  be 
directed  to  assign  the  said  property,  real  and  personal,  [and 
all  other  estate,  property  and  effects  of  said  defendant, 
debtor]  and  who  shall  be  authorized  and  directed  to  sell  the 
same,  or  so  much  thereof  as  shall  be  necessary  for  that  pur- 
71 


Form  1664.]  1122  [Chapter  LXXII. 

pose,  and  apply  the  proceeds,  or  so  much  thereof  as  may  be 
necessary,  to  the  payment  of  the  plaintiff's  said  judgment, 
and  interest  thereon.  (3)  And  for  the  costs  of  this  action; 
and  for  such  other  or  further  relief  as  may  be  just. 

1664.  Complaint  by  two  creditors  suing  together,  against 
debtor  and  his  fraudulent  grantee,  to  set  aside 
conveyance  of  real  estate  (adapted  from  the 
complaint  in  Gates  v.  Boomer,  17  Wis.  455). 

I,  II,  III  and  IV.  [Allege  the  obtaining  of  judgment  and 
issue  and  return  of  execution,  and  amounts  severally  due  to 
each  of  the  plaintiffs,  as  in  Form  1654.] 

V.  That  on  and  prior  to  the  ....  day  of ,  19. . 

[date  of  the  fraudulent  deed]  the  said  defendant  C . . . .  D . . . . 
was  the  owner  in  fee  simple  of  the  following  described  parcel 
of  land  in  said  district,  and  that  on  the  last  named  date  the 
said  C . . . .  D . . . .  by  warranty  deed  sold  and  conveyed  the 
said  land  to  the  defendant  E. . . .  F. . . .  without  considera- 
tion, and  the  said  defendant  E , . . .  F . . . .  then  and  there 
accepted  and  received  said  deed  and  caused  the  same  to  be 
recorded  in  the  office  of  the  register  of  deeds  of  said  county  of 
on  the  ....  day  of ,  19.. 

VI.  That  on  or  about  the  said  ....  day  of ,  19. ., 

said  defendant  C . . . .  D .  .  .  .  also  assigned  and  conveyed  to 
the  said  E. . . .  F. . . .  a  large  amount  of  personal  property 
of  great  value,  embracing  all  that  was  then  owned  by  the 
said  C . . . .  D . . . .  within  this  state  not  exempt  from  seizure 
and  sale  on  execution,  and  that  since  said  conveyances  and 
transfers  the  said  C . . . .  D .  .  .  .  held  and  owned  no  real  or 
personal  estate  within  this  state  subject  to  execution,  unless 
the  legal  title  thereto  has  been  vested  in  some  other  party, 
or  unless  the  same  has  been  so  secreted  as  to  render  it  un- 
available for  the  purpose  of  satisfying  any  judgment  recov- 
ered against  the  said  C . . . .    D .  . . . 

VII.  That  the  lands  so  conveyed  as  aforesaid  were  and 
are  of  great  value,  and  more  than  sufficient  for  the  payment 
and  satisfaction  of  the  demands  of  the  plaintifT  hereinbefore 
set  forth,  and  that  at  the  time  of  the  execution  of  the  con- 
veyances and  transfers  of  property  before  mentioned  the 
said  C . . . .  D . . . .  was  and  had  been  for  a  long  time  a  resi- 
dent of  the  said  county  of ;  that  shortly  thereafter 


Chapter  LXXIL]  1123  [Form  1665. 

said  C . . . .  D .  . . .  absconded  from  said  county  of , 

and  has  not  since  had  any  known  place  of  residence  within 
this  state. 

VIII.  That,  as  plaintiff  is  informed  and  believes,  the 
said  sale  and  conveyance  of  said  land,  and  the  transfer  of 
said  personal  property  by  the  said  C . . . .  D . . . .  to  the  said 
E. . . .  F. . . .  as  hereinbefore  mentioned,  were  both  made  by 
the  said  C . . . .  D . . . .  with  intent  to  hinder  and  delay  and 
defraud  his  creditors,  including  the  plaintiffs,  of  their 
lawful  debts  and  demands,  of  which  fraudulent  intent  the 
said  E . . .  .  F . . . .  had  notice  before  the  making  of  said  con- 
veyance and  transfers,  and  that  the  said  E. . . .  F. . . .  took 
and  accepted  said  conveyance  and  transfer  for  the  purpose  of 
assisting  the  said  C . .  . .  D . .  . .  in  his  fraudulent  intent  to 
hinder,  delay,  and  defraud  his  creditors,  as  aforesaid. 

WHEREFORE  [demand  for  judgment  as  in  Form  1654]. 

1665.  By  attaching  creditor  in  aid  of  writ  of  attach- 
ment against  fraudulent  grantee,  to  set  aside 
deed  of  real  estate  (adapted  from  Evans  v. 
Laughton,  69  Wis.  138;  33  N.  W.  573). 

I.  That  the  said  plaintiff  has  a  valid  claim  against  one 
L. . . .  M .  . . .  in  the  sum  of dollars,  and  that  an  ac- 
tion is  now  pending  in  the court  for county 

in  said  state,  in  which  the  plaintiff  herein  is  the  plaintiff 
and  the  said  L. . . .  M .  .  . .  is  defendant,  for  the  recovery  of 
the  said  claim,  and  that  the  summons  in  said  action  has  been 
served  on  the  said  L.  . .  .  M. . . .,  and  that  the  complaint 
therein  is  now  on  file  in  this  court. 

II.  That  a  writ  of  attachment  was  duly  issued  out  of  this 

court  on  the  ....  day  of ,  19 . .,  in  said  action  in  favor 

of  this  plaintiff  and  against  said  L.  .  . .  M.  .  .  .,  and  that  by 

virtue  of  said  writ  the  sheriff  of  said county  on  the 

....  day  of ,  19. .,  levied  upon  certain  lands  in  said 

county  described  as  follows  [description]  and  that  this  plain- 
tiff has  and  owns  by  virtue  of  said  writ  of  attachment  and 
levy  thereunder,  a  lien  upon  said  land. 

III.  That  the  said  L. . . .  M. . . .  has  no  other  land  or 
property  within  this  state,  as  the  plaintiff  is  informed  and 
believes,  out  of  which  the  plaintiff  can  realize  his  said  claim. 

IV.  That,  as  the  plaintiff  is  informed  and  believes,  the 


Form  1666.]  1124  [Chapter  LXXII. 

said  L . . . .  M . . . . ,  on  the  ....  day  of ,  19 . , ,  and 

after  the  claim  of  the  plaintiff  hereinbefore  mentioned  had 
accrued,  conveyed  by  warranty  deed  to  the  defendant  C . . . . 
D . . , .  the  said  land  hereinbefore  described,  which  deed  was 

recorded  in  the  ofTice  of  the  register  of  deeds  of   

county,  on  the  ....  day  of ,  19. . 

V.  That,  as  the  plaintiff  is  informed  and  believes,  the 
said  conveyance  was  executed  by  the  said  L . . . .  M . . . . 
without  consideration,  and  with  intent  to  hinder,  delay  and 
defraud  the  creditors  of  the  said  L . . . .  M . . . .  including 
this  plaintiff,  and  that  the  said  defendant  C . . . .  D . . . . 
accepted  and  received  said  deed  with  knowledge  of  the  said 
fraudulent  intent  on  the  part  of  the  said  L . . . .  M . . . .  and 
with  intent  upon  his  part  to  assist  the  said  L. . . .  M. . . .  in 
his  said  fraudulent  purpose,  and  to  hold  the  said  lands  as  a 
secret  trust  for  the  said  L . . . .  M . . . . 

VI.  That  there  is  now  actually  and  equitably  due  the 

plaintiff  upon  his  said  demand  the  sum  of dollars, 

with  interest  from ,  19. . 

VII.  [In  Wisconsin  insert  allegation  negativing  collusion, 
as  in  Form  1654.] 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
said  deed  may  be  set  aside  and  adjudged  fraudulent  and  void, 
and  that  the  land  therein  described  be  adjudged  subject  to 
the  lien  of  the  plaintiff's  writ  of  attachment  aforesaid;  and 
that  the  plaintiff  have  such  other  and  further  relief  in  the 
premises  as  shall  be  just  and  equitable,  with  costs. 


1666.  By  judgment  creditor  against  debtor  and  fraudu- 
lent grantee,  to  set  aside  fraudulent  transfer  of 
personal  property  (adapted  from  complaint  in 
Pierstorff  v.  Jorges,  86  Wis.  128;  56  N.  W.  735). 

I,  II,  III  and  IV.     [As  in  Form  1654.] 

V.  That,  as  plaintiff  is  informed  and  believes,  the  de- 
fendant C D was,  on  the day  of ,  19 , ., 

and  for  some  time  prior  thereto,  the  owner  of  the  following 
described  personal  property,  to-wit  [describe  tangible  pro- 
perty conveyed  ]  and  that  said  defendant  at  the  same  time  was 
the  owner  of  a  considerable  number  of  accounts,  debts,  claims 
and  demands  due  him  from  different  persons  whose  names 


Chapter  LXXIL]  1125  [Form  1666. 

are  to  this  plaintiff  unknown,  and  that  the  value  of  all  of  said 
personal  property  was  about  the  sum  of dollars. 

VI.  That  on  or  about  the  said  ....  day  of ,  19. ., 

after  the  commencement  and  immediately  before  the  trial 
of  the  said  action  hereinbefore  mentioned,  the  said  defendant 
C . . . .  D . ,  . .  fraudulently,  and  with  intent  to  hinder,  delay 
and  defraud  his  creditors,  including  this  plaintiff,  and  to 
prevent  the  collection  of  any  judgment  which  might  be  re- 
covered in  said  action,  executed  a  bill  of  sale  of  the  said 
personal  property,  accounts  and  demands  hereinbefore 
described,  which  property  constituted  all  of  the  property 
owned  by  the  said  C . . . .  D . . . .  exempt  from  execution, 
to  the  defendant  E . . . .  F upon  the  alleged  and  pretend- 
ed consideration  of   dollars.     That,  as  the  plaintiff 

is  informed  and  believes,  no  consideration  was  in  fact  paid 
by  the  said  E . . . .  F. . . .  to  the  said  C .  . . .  D . . . .  for  the 
transfer  of  the  said  personal  property,  and  that  the  said 
bill  of  sale  was  executed  by  the  said  C . . . .  D . .  . .  solely  with 
intent  to  hinder,  delay  and  defraud  his  creditors,  and  es- 
pecially this  plaintiff.  That  the  said  transfer  was  not 
accompanied  by  an  immediate  and  continued  exchange  of 
possession  of  the  said  property,  and  that  since  the  said 
transfer  and  up  to  the  present  time  the  said  property  has 
remained  in  the  actual  possession  and  under  the  control  of 
the  said  C .  .  . .  D . ,  .  . ,  under  the  false  and  fraudulent  pre- 
tense that  he  is  the  agent  of  the  said  E . . . .  F. . . .  That  the 
said  E . . .  .  F .  .  . .  at  the  time  of  said  transfer  well  knew  the 
fraudulent  purpose  of  the  said  C.  .  .  .  D.  . . .,  and  accepted 
the  said  bill  of  sale  with  the  fraudulent  intent  to  aid  and 
assist  the  said  C . . .  .  D . . . .  in  his  said  fraudulent  purpose, 
and  especially  with  intent  to  prevent  the  plaintiff  from  col- 
lecting any  judgment  which  he  might  recover  in  said  action. 

VII.  That,  as  the  plaintiff  is  informed  and  believes,  the 
said  defendant  C . . . .  D .  .  .  .  had  not  at  the  time  of  the  mak- 
ing of  the  said  bill  of  sale  and  has  not  since  had,  and  has  not 
now  any  other  property  than  that  embraced  in  the  said  bill 
of  sale  whatever,  out  of  which  the  plaintiff's  judgment  can 
be  satisfied  in  whole  or  in  part,  and  that  unless  the  said 
property  can  be  reached  and  applied  to  the  payment  of  said 
judgment  the  same  must  remain  wholly  unpaid. 

VIII.  [In  Wisconsin  add  allegation  negativing  collusion,  as 
in  Form  1654.] 


Form  1G67.]  1126  [Chapter  LXXI I. 

WHEREFORE  the  plaintiff  demands  judgment  that  a 
receiver  of  all  the  property  and  effects  of  the  said  C . . . . 
D. . . .  be  appointed;  that  the  said  pretended  bill  of  sale  of 
said  personal  property  may  be  declared  null  and  void  as 
against  this  plaintiff;  and  that  the  said  property  may  be 
transferred  to  such  receiver.  That  the  defendants  be  re- 
quired to  account  for  all  the  moneys  collected  by  them,  or 
either  of  them,  upon  the  accounts  and  demands  aforesaid, 
and  for  all  the  proceeds  arising  from  the  sale  of  any  of  such 
property  and  pay  over  the  same  to  such  receiver  in  order  that 
the  same  may  be  applied  upon  the  plaintiff's  said  judgment. 
That  said  defendants  be  enjoined  from  disposing  of  any  of 
such  property,  or  collecting  any  of  said  accounts,  and  that 
the  said  receiver  be  ordered  to  take  possession  of  and  sell 
all  the  property  of  said  C .  . . .  D .  . . .  not  exempt  from  sale 
on  execution,  or  so  much  thereof  as  may  be  necessary,  and 
apply  the  proceeds  thereof  to  the  payment  of  the  amount 
due  on  said  judgment,  as  aforesaid;  and  that  the  plaintiff  re- 
cover his  costs  and  disbursements. 

1667.  By  judgment  creditor  against  the  debtor,  his  wife, 
two  other  fraudulent  grantees  of  personal  prop- 
erty, and  a  banking  corporation,  to  reach  con- 
cealed personal  property  and  moneys  (adapted 
from  the  complaint  sustained  in  Gullickson  v. 
Madsen,  87  Wis.  19;  57  N.  W.  965). 

I,  II,  III  and  IV.  [Allege  recovery  of  judgment  of  the 
plaintiff,  issue  of  execution  and  return,  and  amount  actually 
due,  as  in  Form  1654.] 

V.  That  the  defendant.  Bank  of is  and  was  at  the 

times  hereinafter  mentioned,   a  banking  corporation  duly 
organized  and  existing  under  and  by  virtue  of  the  laws  of  the 

state  of [or  the  laws  of  the   United  States]  and  doing 

business  at  the  city  of    in  said  county  of    

VI.  That  on  the  ....  day  of ,  19 .  . ,  the  defendant 

C . ,  .  .  D . .  . ,  was  the  owner  and  in  the  possession  of  certain 

saloon  furniture  and  fixtures  situated  in  the  city  of 

county  of free  of  incumbrances,  which  furniture  and 

fixtures  were  reasonably  worth  the  sum  of dollars, 

and  that  on  the  said  last  mentioned  day,  as  plaintiff  is  in- 
formed and  believes,  the  said  C. . . .  D. . . .  made,  executed 


Chapter  LXXII.]  1127  [Form  1667. 

and  delivered  to  the  defendant  E , . . .  F . . . .  a  chattel  mort- 
gage covering  the  said  furniture  and  fixtures  purporting  to 

secure  the  payment  of  the  sum  of dollars  and  caused 

said  mortgage  to  be  filed  in  the  office  of  the  city  clerk  of  the 

city  of    on  the    ....    day  of    ,    19..,   which 

mortgage  now  appears  to  be  unsatisfied  upon  the  records  of 
said  city  ckvk;  that,  as  plaintiff  is  informed  and  believes, 
the  said  mortgage  was  in  fact  executed  and  delivered  with- 
out any  consideration  whatever,  and  solely  for  the  purpose  of 
hindering,  delaying  and  defrauding  this  plaintiff  in  the  col- 
lection of  his  said  claim  against  the  said  C . . . .  D . .  . . 

VII.  That  the  defendant  G.  . . .  H . . . .  is  the  wife  of  the 
defendant  C...  D....,  and  at  the  times  named  in  this 
complaint  had  no  separate  estate;  that  the  defendant  C. . . . 
D . . . .  has  for  many  years  made  regular  deposits  in  the  bank- 
ing house  conducted  by  the  said  defendant,  the  Bank  of 

aforesaid,   and  that  since  the  indebtedness  to  the 

plaintiff  hereinbefore  mentioned  accrued,  the  defendant 
C . . .  .  D . . , .  has  regularly  and  systematically  made  and 
now  makes,  his  deposits  in  the  said  bank  in  the  name  of  his 
said  wife  G . . . .  H .  .  . . ;  that  the  said  G . . . .  H . . . .  does  not 
in  fact  handle  or  control  any  of  said  money;  but  that  the 
same  is  withdrawn  from  the  said  bank  on  checks  of  the  said 
C....  D....  as  agent  for  the  said  G....  H....,  which 
method  the  said  C. . . .  D . . . .  has  resorted  to  solely  for  the 
purpose  of  defrauding,  hindering  and  delaying  his  creditors, 
and  this  plaintiff  in  particular,  in  the  collection  of  their  just 

claims;  that  the  said  defendant,  the  Bank  of as  the 

plaintiff  is  informed  and  believes,  now  has  in  its  possession 
and  under  its  control  moneys,  credits  and  effects  belonging 
to  the  defendant  C. . . .  D.  . . .,  but  which  are  deposited  in 
the  name  of  the  defendant  G.  .  .  .  H.  .  . .  and  that  the  same 
are  so  credited  and  deposited  for  the  sole  purpose  of  hin- 
dering, delaying  and  defrauding  the  creditors  of  the  said 

C.  .  .  .  D . . .  . ;  that  the  said  Bank  of is  now  owing  the 

said  C. . . .  D. . , .  upon  certificates  of  deposit  issued  either 
to  said  C. . . .  D . .  . .  or  to  the  said  G .  .  .  .  H . . . . ,  and  that 
the  value  of  the  property  and  credits  of  the  said  C. . . .  D .  .  . . 
so  held  by  the  said  bank,  and  the  indebtedness  of  the  said 
bank  to  the  said  C . .  . .  D .  . .  .  upon  certificates  of  deposit  as 

aforcFnid,  exceeds  the  sum  of dollar.,  as  plaintiff  is 

informed  and  believes. 


Form  1668.]  1128  [Chapter  LXXII. 

VIII.  That  the  said  C . . . .  D . . . .  has  no  other  property- 
other  than  that  hereinbefore  mentioned  whatever,  out  of 
which  the  plaintiff's  judgment  can  be  satisfied  in  whole  or  in 
part,  and  that  the  said  C . . . .  D . . . .  unjustly  refuses  to  ap- 
ply any  of  the  aforesaid  property  in  satisfaction  of  said  judg- 
ment. 

IX.  [In  Wisconsin  insert  allegation  negativing  any  collu- 
sion, as  in  Form  1654.] 

WHEREFORE  plaintiff  demands  judgment  that  the  said 
defendant  C. . . .  D . . . .  be  enjoined  from  selling  or  dispos- 
ing of  any  money,  property,  debts,  choses  in  action,  or  equit- 
able interests  belonging  to  him  or  held  in  trust  for  him,  or 
in  which  he  is  in  any  way  interested,  and  that  he  be  adjudged 
to  apply  the  same  upon  the  judgment  of  the  plaintiff  herein- 
before mentioned;  that  the  chattel  mortgage  hereinbefore 
mentioned,  executed  to  the  defendant  E . . . .  F . . . .  be 
declared  fraudulent  and  void,  and  that  the  same  be  can- 
celled, and  that  the  property  therein  described  be  adjudged 
to  be  the  property  of  the  defendant  C . . . .  D . . . . ;  that  the 
defendant  C . . . .   D ,  . . .   be  ordered  to  appear  before  the 

court  or  a  judge  thereof,  and  under  oath  disclose  and 

answer  as  to  any  and  all  property  in  which  he  may  be  bene- 
ficially interested;  that  the  defendant  E. . . .  F. . . .  be  en- 
joined from  disposing  of  or  selling  any  of  said  property  de- 
scribed in  said  mortgage;  that  the  defendant  Bank  of 

be  enjoined  from  making  any  payment  upon  the  certificates 
of  deposit  aforesaid,  or  from  paying  out  or  disposing  of  any 
property,  money  or  credits  held  by  said  bank  to  the  credit  of 
the  said  G. . . .  H. . . .  or  to  the  credit  of  the  said  C. . . . 
D . . . . ;  and  that  the  defendant  G. . . .  H. . . .  be  enjoined 
from  disposing  of  any  of  the  property,  money,  credits  or 
effects  held  by  her  as  aforesaid;  that  a  receiver  of  the  pro- 
perty of  the  said  C. . . .  D. . . .  be  appointed  by  this  court, 
with  the  usual  powers  of  a  receiver  in  such  cases;  and  that  the 
plaintiff  have  such  other  relief  as  maybe  equitable,  with  costs. 

1668.  By  judgment  creditor  to  set  aside  conveyance 
made  prior  to  the  creation  of  the  indebt- 
edness due  to  the  plaintiff  (adapted  from  com- 
plaint in  Shand  v.  Hanley,  71  N.  Y.  319). 

I,  II,  III  and  IV.     [As  in  Form  1654.] 


Chapter  LXXIL]  1129  [Form  1669. 

V.  That  on  the  ....  day  of ,  19 . .,  and  for  several 

years  prior  thereto  the  defendant  C...  D....  was  the 
owner  and  in  possession  of  the  following  described  lands  [in- 
sert description],  and  that  said  lands  were  and  still  are  of  the 

value  of  about dollars,  and  were  exempt  from  sale 

upon  execution. 

VI.  That  by  reason  of  the  fact  that  the  said  C . . . . 
D . . . .  owned  the  said  lands  said  C . . . .  D . . . ,  was  enabled 
to  and  did  obtain  credit  in  his  business  as  a  merchant,  and 
that  many  persons  including  this  plaintiff,  sold  and  delivered 
to  the  said  C . . . .  D . . . ,  goods,  wares  and  merchandise  be- 
lieving the  said  C . . . .  D . . . .  to  be  solvent  and  relying  upon 
the  fact  of  his  ownership  of  the  said  real  estate. 

VII.  That  on  the  day  of  ,  19..,  the  de- 
fendant C .  . . .  D . . . .  secretly  conveyed  the  said  lands  by 
warranty  deed  to  the  defendant  E .  . . .  F . . . .  without 
consideration,  and  for  the  purpose  of  hindering,  delaying  and 
defrauding  his  existing  creditors,  as  well  as  the  creditors  who 
might  thereafter  extend  credit  to  him  in  the  prosecution  of 
his  said  business,  which  intention  was  well  known  to  the 
said  defendant  E....  F....  and  participated  in  by  him; 
that  after  the  execution  of  the  said  conveyance  the  said 
defendant  C.  . . .  D. . . .  remained  in  continuous  possession 
of  the  said  premises,  and  in  apparent  owner:  hip  thereof, 
and  that  by  reason  of  the  said  continuous  possession  and 
apparent  ownership,  the  credit  of  the  said  C . . . .  D . . . .  was 
continued,  and  this  plaintiff,  relying  upon  said  apparent 
ownership  and  possession  of  said  property  continued  to 
extend  credit  to  the  said  C . . . .  D .  . . .  and  allowed  him  to 
contract  the  indebtedness  hereinbefore  set  forth  on  account 
of  which  the  said  judgment  was  rendered. 

VIII.  [In  Wisconsin  insert  an  allegation  negativing  collu- 
sion, as  in  Form  1654.] 

WHEREFORE  plaintiff  demands  judgment  that  the  said 
conveyance  by  the  said  C . . . .  D . . .  .  to  the  said  E . .  . . 
F. . . .  be  adjudged  void  as  to  this  plaintiff  [continue  as  in 
Form  1654.] 

1669.  By  creditor  to  reach  salary  due  the  debtor  (adapt- 
ed from  complaint  sustained  in  Kingman  v. 
Frank,  33  Hun,  471). 


Form  1670.]  '      1130  [Chapter  LXXII. 

I,  II,  III  and  IV.  [Allege  judgment,  execution  and  return, 
and  amount  due,  as  in  Form  1654.] 

V,     That,   as  plaintiff  is  informed  and  believes,   on   or 

about  the  ....  day  of ,  19. .,  the  defendant  E 

F . . . .  agreed  to  and  did  employ  the  defendant  C . . . . 
D . . . .  [judgment-debtor]  to  manage  a  certain  mercantile 
business  conducted  by  said  E . ,  . .  F . . . .  at  the  city  of 
,  and  agreed  to  pay  the  said  C . . . .  D . . . .,  in  consid- 
eration thereof,  the  sum  of dollars  per  month;  that 

the  said  C .  . . .  D .  .  . .  thereupon  entered  upon  the  said 
employment,  and  conducted  the  said  business  in  accord- 
ance with  said  agreement,  but  that  said  defendant  E . . . . 
F . . . .  has  failed  to  pay  to  the  said  C . . . .  D . . . .  the  said 

sum  of dollars  per  month,  as  agreed,  and  has  only 

paid  about  the  sum  of dollars,  and  that  there  is  now 

due  from  the  said  E . . . .  F. . . .  to  the  said  defendant  C . . . . 
D . . . .  on  account  of  his  services  so  rendered  the  sum  of 
dollars. 

\T.  That  the  defendant  C. . .  .  D. . . .  has  no  property, 
real  or  personal,  upon  which  execution  can  be  levied  for  the 
payment  of  the  plaintiff's  said  judgment,  and  that  he  wrong- 
fully refuses  to  apply  any  part  of  his  said  salary  to  the  satis- 
faction thereof. 

VII.  [In  Wisconsin  add  allegation  negativing  any  collu- 
sion as  in  Form  1654.] 

WHEREFORE  plaintiff  demands  judgment  that  a  re- 
ceiver may  be  appointed;  that  the  defendant  E. . .  .  F. . . . 
be  required  to  pay  the  amount  due  from  him  to  the  said 
defendant  C. . . .  D. . . .  as  aforesaid,  to  the  said  receiver; 
and  that  the  plaintiff's  demand  may  be  satisfied  therefrom; 
and  that  this  plaintiff  have  such  other  and  further  relief  as 
may  be  proper,  with  costs. 

1670.  By  judgment  creditor,  to  reach  royalties  falling- 
due  from  publishers  to  the  debtor  under  a  con- 
tract (adapted  from  Lord  v.  Harte,  118  Mass. 
271). 

I,  II,  III  and  IV.     [As  in  Form  1654.] 

V.  That  the  defendant  C .  .  . .  D . . . .  [debtor]  is  and  has 
been  for  many  years  an  author  of  large  reputation,  and  has 
written  and  caused  to  be  published  works  in  prose  and  poetry 
which  have  had  and  still  have  a  large  and  profitable  sale  in 


Chapter  LXXIL]  1131  [Form  1670. 

the  United  States  and  elsewhere  and  that  many  of  said  works 
are  now  being  published  by  the  defendants  0 . . . .  &  Co. ; 
and  upon  information  and  belief  the  plaintiff  alleges  that  the 
said  defendant  C . . . .  D . . . .  has  assigned  to  the  defendants 
0 . . . .  &  Co.,  the  copyrights  of  the  said  books,  and  the  sole 
right  to  publish  and  sell  the  same,  in  consideration  of  a 
certain  written  contract  by  the  terms  of  which  contract  the 
said  0 . . . .  &  Co.,  in  consideration  of  the  assignment  to  them 
of  said  copyrights,  agree  to  publish  and  sell  as  many  copies  of 
said  books  as  can  be  advantageously  sold  during  the  life  of 
said  copyrights  and  out  of  such  sales  pay  to  the  said  C . . . . 
D. . . .,  ....  per  centum  upon  the  retail  prices  of  said  books 
as  compensation  for  the  authorship  thereof,  such  compensa- 
tion to  be  paid  upon  the  stating  of  semi-annual  accounts  in 
the  months  of  May  and  November  of  each  year. 

VI.  That  under  the  terms  of  said  contract  the  said  C . . . . 
D . . . .  has  already  received  large  sums  as  royalties,  and  more 
than  enough  to  pay  the  plaintiff's  said  judgment;  that  the 
sale  of  said  books  is  large  and  continuous  and  that  the  pro- 
fits of  the  said  C . . . .  D . . . .  under  said  contracts  will  con- 
tinue for  many  years,  but  that  the  said  C . . . .  D . . . .  refuses 
to  apply  any  part  of  the  sums  so  received  by  him  to  the  pay- 
ment of  plaintiff's  judgment,  and  the  same  cannot  be  reached 
by  attachment  or  execution.  That  the  amount  due  the 
defendant  C . . . .  D . . . .  upon  a  proper  accounting  from  the 
defendants  0. . . .  &  Co.,  at  the  time  of  the  commencement 
of  this  action,  or  at  the  time  of  the  first  accounting  there- 
after, will  not  be  sufficient  to  discharge  the  plaintiff's  said 
judgment. 

VII.  [In  Wisconsin  add  allegation  negativing  collusion 
as  in  Form  1654.] 

WHEREFORE  plaintiff  demands  judgment  that  an  ac- 
counting be  had,  and  that  the  sums  due  and  hereafter  to 
become  due  from  the  defendants  0 . . . .  &  Co.,  to  the  de- 
fendant C...   D....    be  ascertained;  that  a  receiver  be 

appointed,  with  the  usual  powers;  that  the  defendants  O 

&  Co.,  be  adjudged  to  pay  over  to  said  receiver  the  said  sums 
so  due  or  hereafter  becoming  due  under  said  contracts  to 
said  C...  D....  until  the  said  judgment,  with  interest 
and  the  costs  of  this  action,  be  fully  discharged;  and  that 
the  plaintiff  have  such  other  and  further  relief  as  may  be 
just   and   equitable. 


Forms  1671,  1672.]  1132  [Chapter  LXXII. 

1671.  By  assignee  in  bankruptcy  to  recover  unlawful 

preference,  or  its  value.^ 

I.  That  heretofore  and  on  the  ....  day  of ,  19. ., 

one  L . . . .  M . . . .  of duly  filed  his  petition  in  the 

United  States  district  court  for  the district  of 

praying  that  he  be  adjudged  a  bankrupt  pursuant  to  act  of 
congress,  and  that  pursuant  to  such  petition  said  L . . . . 
M , . . .  was  by  said  court  on  said  day  duly  adjudged  a  bank- 
rupt; that  thereafter  and  on  the  ....  day  of ,  19.  ., 

this  plaintiff  was  duly  elected  and  appointed  by  the  creditors 
of  said  L .  . . .  M . . .  .  as  trustee  in  said  bankruptcy  proceed- 
ings, and  such  election  was  duly  approved  by  I ... .  K. . . . 
referee  in  bankruptcy,  before  whom  said  proceedings  were 
pending;  that  thereupon  the  plaintiff  duly  qualified  as  such 
trustee  by  giving  the  bond  required  by  said  court  and 
taking  the  oath  required  by  law,  and  entered  upon  his  duties 
as  trustee  and  brings  this  action  in  such  capacity. 

II.  [Set  forth  the  property  owned  by  the  bankrupt  during 
the  four  months  preceding  the  filing  of  the  petition,  the  indebt- 
edness of  the  bankrupt  to  the  defendant  and  the  transfer  within 
the  four  months  of  certain  of  the  property,  describing  it,  to  the 
defendant  for  the  purpose  of  giving  him  a  preference,  and  the 
knowledge  of  the  defendant  of  such  purpose.] 

WHEREFORE,  etc.  [The  demand  for  judgment  should 
be  for  the  return  of  the  property  or  its  value.] 

1672.  By  administrator  or  executor  to  reach  property 

fraudulently  conveyed  by  his  intestate,  or  testa- 
tor.^ 

I.     That  one  L. . . .  M. . . .,  of ,  in  the  county  of 

in  said  state,  died  on  the  ....  day  of ,  19 .  . , 

a  resident  of  said  county,  and  that  this  plaintiff  was  on  the 
....  day  of ,  19 . . ,  by  the  court  of 

'  This  action  may  be  brought  by  debts  that  the  alleged  preference 

the    trustee   in    bankruptcy    under  be  recovered.     Jackman  v.  Bank, 

the  Bankruptcy  Act  (U.  S.  Act  of  125  Wis.  465;  104  N.  W.  98. 

July  1,  1898,  sec.  60  subd.  b;  U.  S.  ''This    action    is    authorized    by 

Comp.  Stats.  1901  p.  3405).     It  is  Wis.    Stats.    1913   sec.   3832,    (See 

not   necessary  to   allege  that   any  Andrew  v.  Hinderman,  71  Wis.  148; 

creditors   had   filed   claims   in   the  36  N.  W.  624.);  Ariz.  R.  S.  1913  sec. 

bankruptcy  proceedings,  nor  that  974;  Ark.   Dig.  of  Stats.     904  sec. 

it  is  necessary  for  the  payment  of  81;  Cal.  C.  C.  P.  1906  sec.  1589; 


Chapter  LXXIL] 


1133 


[Form  1672. 


county  duly  appointed  administrator  of  the  estate  of  said 
L. . . .  M. . . .  deceased,  and  has  duly  qualified  as  such  ad- 
ministrator, and  is  now  acting  as  such.  [//  the  action  is 
brought  by  an  executor,  substitute  for  paragraph  I  here  para- 
graph II,  Form  853.] 

II.  That  for  many  years  prior  to  the  death  of  said  L. . . . 
M . . . .,  and  up  to  the  date  of  the  conveyance  hereinafter  set 
forth,  he  owned  and  was  in  possession  of  the  following  de- 
scribed real  estate  [describe  property]. 

III.  That  on  the  ....  day  of ,  19. .,  the  said  de- 
ceased executed  and  delivered  to  the  defendant  C .  . . ,  D . . . . 
a  warranty  deed  of  said  real  estate  which  deed  upon  its  face 
purported  to  have  been  executed  in  consideration  of  the  pay- 
ment of  the  sum  of  dollars,  but  as  plaintiff  is  in- 
formed and  believes,  no  consideration  was  in  fact  paid  there- 
for, but  that  the  same  was  executed  and  delivered  with 
intent  on  the  part  of  said  L . . . .  M .  . . .  to  hinder,  delay  and 
defraud  his  existing  creditors,  of  which  intent  the  defendant 
C . . . .  D . . . .  was  fully  advised  at  the  time  he  received  said 
conveyance. 

IV.  That  on  and  prior  to  said  ....  day  of ,  19 . . 

[date  of  conveyunce]  said  L. . . .  M . .  . .  was  justly  indebted  to 
X....  Y....,  Y...,  Z.,..,  and  various  other  persons,  in 

large  amounts,  aggregating  in  all  about  the  sum  of 

dollars,  which  debts  remained  unpaid  at  the  time  of  the 
death  of  said  L....  M....,  all  of  which  debts  will,  as 
plaintiff  is  informed  and  believes,  be  proved  and  allowed 
against  the  estate  of  said  L . . . .  M . . . .  [or,  if  claims  have 
aheady  been  allowed:  and  that  there  have  already  been  proven 
and  allowed  by  said  court  of  the  said  debts  so  owing  by  said 
deceased  claims  amounting  in  the  aggregate  to  the  sum  of 
dollars]. 

V.  That  the  net  amount  of  the  assets  of  the  estate  of  said 
deceased  which  has  come  into  the  possession  or  knowledge 
of  the  plaintiff  as  administrator  aforesaid  does  not  exceed  the 
sum  of dollars,  and  that  there  will  be  a  deficiency  of 


Idaho  Rev.  Codes  1908  sec.  5558 
Iowa  Ann.  Code  1897  sec.  3317 
Mont.  Rev.  Codes  1907  sec.  7611 
Minn.  Gen.  Stats.  1913  sec.  7313 
Neb.  R.  S.  1913  sec.  1375;  N.  Dak 
Rev.  Codes  1905  sec.  8173;  S.  Dak 


Prob.  C.  1903  sec.  250;  Okla.  Comp. 
Laws  1909  sec.  5355;  Oregon  Laws 
1910  sec.  1279;  Utah  Comp.  Laws 
1907  sec.  3922;  Wash.  Rem.  and 
Bal.  Code  1910  sec.  1540;  Wyo. 
Comp.  Stats.  1910  sec.  5571. 


Form  1673.]  1134  [Chapter  LXXII. 

assets  to  pay  the  just  debts  chargeable  against  said  deceased, 
amounting  to  at  least  the  sum  of dollars, 

VI.  That  the  defendant  threatens  and  is  about  to  con- 
vey said  lands  to  some  innocent  purchaser  for  value,  without 
notice,  and  that  if  he  should  make  such  conveyance  the  estate 
of  the  said  L . .  . .  M . . . .  would  be  and  remain  insolvent,  and 
the  said  creditors  would  thereby  lose  all  or  a  large  portion  of 
their  just  demands. 

WHEREFORE  plaintiff  demands  judgment  that  the  said 
deed  be  declared  void  and  cancelled;  that  the  said  defendant 
C...  D....  be  adjudged  to  reconvey  said  lands  to  this 
plaintiff,  as  administrator  [or  executor]  aforesaid;  and  that 
the  plaintifT  have  such  other  and  further  relief  as  may  be 
just  and  equitable,  with  costs. 

1673.  By  creditor  against  administrator  and  grantee  of 
deceased  debtor,  when  estate  is  insufficient  to 
pay  claims  proven.^ 

The  plaintifT,  on  behalf  of  himself  and  all  other  creditors  of 
L....  M....  deceased  who  are  similarl^^  circumstanced, 
complaining  of  the  defendants  C . . . .  D . . . .  and  E . . . . 
F. . . .,  respectfully  alleges: 

I.  That  one  L M  . . . .,  of ,  died  intestate  on 

the  ....  day  of ,  19 .  . ,  and  that  on  the  ....  day  of 

,  19. .,  upon  proceedings  duly  had  in  that  behalf,  the 

defendant  E. . .  .   F. . . .   was  by  the   court  of  said 

county  duly  appointed  administrator  of  the  estate  of 

said  L. . . .  M.  .  . .  deceased,  and  thereafter  duly  qualified 
and  entered  upon  the  duties  of  said  office,  and  is  now  such 
administrator. 

II.  That  on  the  ....  day  of ,  19 .  . ,  the  said  E . . . . 

F. . . .,  as  administrator  aforesaid,  duly  made  and  returned 
into  said court  an  inventory  of  all  the  real  and  per- 
sonal property  of  said  L . . . .  M .  . . . ,  and  that  the  property 
included  in  said  inventory  was  duly  appraised  as  required  by 

'  This  action  may  be  brought  by  tate    will    be    insufficient    to    pay 

a  creditor  who  has  obtained  judg-  debts,  but  it  can  not  be  brought 

ment,  or  whose  claim  has  been  al-  to   trial   until   the  insufficiency   of 

lowed  by  the  county  court.     Wis.  the  estate  is  judicially  ascertained 

Stats.  1913  sec.  3835.     It  may  be  by  the  county  court.     Wis.  Stats, 

brought    whenever    there    is    just  1913  sec.  3836;   German  Bank  v. 

reason  to   anticipate  that  the  es-  Leyser,  50  Wis.  259. 


.  Chapter  LXXII.]  1135  [Form  1673. 

law,  and  that  the  entire  amount  of  the  property,  real  and 
personal,  belonging  to  said  estate,  does  not  exceed  in  value 

the  sum  of dollars,  being  the  amount  at  which  the 

same  was  appraised,  as  plaintiff  is  informed  and  believes. 

III.  That  the  said  deceased,  at  the  time  of  his  death  was 

justly  indebted  to  this  plaintiff  in  the  sum  of dollars, 

upon  a  certain  promissory  note  of  said  deceased  and  that  the 
said  claim  was  duly  presented  to  the  court  aforesaid  for  allow- 
ance against  said  estate,  and  was  duly  allowed  by  said  court 

on  the    ....   day  of   ,   19 .  . ,  at  the  sum  of   

dollars;  and  that  the  following  claims  against  said  estate 
were  also  duly  presented  to  and  allowed  by  said  court  prior 
to  the  commencement  of  this  action,  to-wit  [give  names  and 
the  amounts  of  claims  allowed]. 

IV.  That  there  is  just  reason  to  believe,  and  this  plaintiff 
does  believe,  that  the  entire  estate  of  the  said  L . . . .  M . . . . 
as  set  forth  in  said  inventory  will  be  insufficient  to  pay  the 
debts  of  the  said  intestate. 

V.  That  at  the  time  of  the  contracting  of  the  said  indebt- 
edness owing  by  the  said  deceased  to  this  plaintiff,  as  well  as 
to  the  other  creditors  aforesaid  the  said  L. . . .  M. . . .  was 
the  owner  and  in  possession  of  [here  describe  property  fraud- 
ulently conveyed]  and  that  on  or  about  the  ....  day  of , 

19. .,  the  said  L.  .  .  .  M without  consideration  and  with 

intent  to  hinder  and  delay  his  said  creditors,  conveyed  by 
warranty  deed  [or,  if  personal  property:  by  bill  of  sale]  the 
said  property,  to  the  defendant  C .  .  .  .  D . . . .  who  well 
knew  the  said  fraudulent  intent  of  said  L . . .  .  M . . .  .  and 
participated  therein,  and  that  the  said  property  is  now  in  the 
possession  of  the  said  C . .  . .  D . . .  .  who  claims  title  thereto 
and  threatens  to  convey  and  dispose  of  the  same. 

V.  That  there  is  no  property,  real  or  personal,  belonging 
to  said  estate  which  can  be  applied  to  the  payment  of  said 
debts,  except  the  property  inventoried  as  aforesaid,  and  the 
property  so  conveyed  to  said  G .  .  . .  D .  .  .  . 

WHEREFORE  plaintiff  demands  judgment  that  said 
defendant  C...  D....  be  enjoined  and  restrained  from 
selling  or  disposing  of  the  said  [describe  property];  that  he  is 
required  to  convey  [and  deliver]  the  same  to  said  adminis- 
trator, and  that  said  administrator  be  directed  to  sell  the 
same  and  apply  the  proceeds  to  the  payment  of  the  debts 


Form  1674.]  1136  [Chapter  LXXII. 

of  said  estate,  and  for  such  other  relief  as  may  be  just  and 
equitable,  with  costs. 

1674.  By  creditor  of  deceased  debtor,  to  reach  land  pur- 
chased by  the  debtor,  but  conveyed  to  a  third 
person  in  fraud  of  creditors  (adapted  from  com- 
plaint sustained  in  Allen  v.  McRae,  91  Wis.  226; 
64  N.  W.  889). 

The  plaintiff,  on  behalf  of  himself  and  all  other  creditors  of 
L. . . .  M. .  , .,  deceased,  who  are  similarly  circumstanced, 
complaining  of  the  defendant  C...  D....,  respectfully 
alleges: 

I.  That  one  L. . . .  M. . . .,  of  ,  in  the  county  of 

,  being  at  the  time  wholly  solvent  and  indebted  to 

this  plaintiff  and  others,  did  on  the  ....  day  of  .......  19 .. , 

purchase  of  one  O . . . .  P . . . .  the  following  described  real 

estate  [describe  the  property]. 

II.  That  the  said  L. . . .  M. . . .  paid  from  his  own  mon- 
eys the  entire  consideration  for  the  said  real  estate,  and 
caused  the  title  thereof  to  be  conveyed  to  the  defendant 
C . . . .  D . . . .  by  warranty  deed,  in  usual  form,  whereby  the 
said  C . . . .  D . .  . .  became  vested  with  the  legal  title  to  said 
property;  that  the  said  conveyance  to  the  said  C . . . .  D . . . . 
was  made  and  intended  to  be  in  secret  trust  for  the  sole  use 
and  benefit  of  the  said  L. . . .  M . . . .,  pursuant  to  an  agree- 
ment between  the  said  L .  . . .  M . . . .   and  the  said  C 

D . . . . ,  and  with  intent  on  the  part  of  both  said  L .  . . .  M . . . . 
and  said  C . . . .  D . .  . .  that  the  said  property  should  be  held 
by  the  said  C . . . .  D . . . .  in  trust  for  the  said  L . . . .  M . . . . 
so  that  it  should  not  be  subjected  to  the  payment  of  the  debts 
of  the  said  L . . . .  M . . . . ;  that  the  legal  title  to  said  land  has 
continued  to  remain  in  the  said  L ....  M ....  by  virtue  of  the 
said  conveyance  ever  since  the  date  thereof,  and  still  so 
remains. 

III.  That  the  said  L . . . .  M ,  at  the  time  of  said  con- 
veyance was  indebted  to  this  plaintiff  in  the  sum  of 

dollars,  and  was  also  indebted  to  divers  other  parties,  to  an 

amount  aggregating  about  the  sum  of dollars,  and 

continued  to  be  so  indebted  until  the  time  of  his  death,  which 
death  occurred  on  the  ....  day  of ,  19. . 


Chapter  LXXIL]  1137  [Form  1674. 

IV.  That  on  the day  of ,  19 . .,  the  defendant 

E . . .  .  F .  . .  . ,  upon  proceedings  duly  had  for  that  purpose, 
was  appointed  by  the  court  of county,  ad- 
ministrator of  the  estate  of  the  said  L M deceased, 

and  duly  qualified  as  such  administrator,  and  ever  since  has 

been  such  administrator;    that  on  the  ....  day  of , 

19.  .,  this  plaintiff  duly  filed  in  the  said   court  her 

claim  as  creditor  aforesaid  against  the  estate  of  the  said 
L . . . .  M . . . . ,  which  claim  was  duly  allowed  by  said  court 
at  the  sum  of dollars,  on  the  ....  day  of ,  19 . . 

V.  That  no  funds  belonging  to  said  estate  have  come  into 
the  hands  of  the  said  administrator,  and  that  there  is  no 
property  in  the  possession  of  said  administrator,  or  within 
his  knowledge,  out  of  which  this  plaintiff  can  collect  his  said 
claim. 

VI.  That  on  the day  of ,  19 . .,  an  execution 

was  duly  issued  out  of  the court  of county, 

upon  a  judgment  in  a  certain  action  in  which  Y. . . .  Z. . . . 
was  plaintiff  and  L . . . .  M . . . .  was  defendant,  and  that  on 
the  ....  day  of ,  19. .,  said  execution  was  duly  re- 
turned wholly  unsatisfied,  and  that  this  plaintiff  brings  this 
action  on  behalf  of  himself  and  all  the  creditors  of  said 
L. . . .  M. , . .  whose  claims  existed  at  the  time  of  the  con- 
veyance of  said  real  estate  to  the  defendant  C D 

to-wit,  on  the  ....  day  of ,  19 .  . 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
defendant  C. . . .  D.  . . .  be  adjudged  a  trustee  of  said  land 
for  the  benefit  of  this  plaintiff  and  the  other  creditors  of  the 
said  L .  . . .  M . . . .  existing  at  the  time  of  said  conveyance, 
and  that  the  court  appoint  a  receiver  to  sell  said  property,  or 
so  much  thereof  as  may  be  necessary  to  pay  said  creditors, 
and  that  the  said  C ....  D ....  be  required  to  account  for  the 
rents  and  profits  of  said  real  estate  to  said  receiver  from  the 
time  of  said  conveyance  if  the  same  shall  be  necessary  to 
pay  the  claims  of  said  creditors,  with  interest,  and  that  the 
plaintiff  have  such  other  or  further  relief  as  may  be  equitable, 
with  costs. 
72 


Form  1675.]  1138  [Chapter  LXXII. 

1675.  Complaint  by  a  judgment  creditor  against  insol- 
vent corporation  and  its  officers,  to  reach  unpaid 
stock  subscriptions  and  corporate  assets  fraudu- 
lently conveyed  by  the  officers  to  themselves 
(adapted  from  complaint  sustained  in  Pierce  v. 
Milwaukee  Construction  Co.,  et  al.,  38  Wis.  253). 

I,  II,  III  and  IV.     [As  in  Form  1654.] 

V.  [Allege  corporate  character  and  business  of  the  corpora- 
tion defendant.] 

VI.  The  plaintiff  further  alleges,  upon  information  and 
belief,  that  the  said  defendant  [name  corporation]  is  possessed 
of  or  entitled  to  real  and  personal  property,  evidences  of 
debt  or  things  in  action  which  are  held  for  it  by  some  or  all 
of  the  remaining  defendants  named  in  this  complaint  in  secret 
trust  or  under  some  colorable  title  for  its  benefit,  but  which 
is  under  the  control  and  direction  of  the  said  corporation 
under  some  parol  or  written  agreement  which  the  said  cor- 
poration refuses  to  disclose  to  the  plaintiff. 

VII.  That,  as  the  plaintiff  is  informed  and  believes,  the 
said  defendants  [name  stockholders  whose  subscriptions  to  stock 
are  unpaid]  were  at  the  time  of  the  incurring  of  the  indebted- 
ness due  to  the  plaintiff,  and  still  are  stock  holders  and  di- 
rectors in  the  said  corporation  by  virtue  of  subscriptions 
made  by  them  to  its  capital  stock,  to  the  following  amounts 
respectively  [name  amounts  of  stock  subscribed  for  by  each  of 
said  defendants],  but  that  the  said  defendants  did  not  at  the 
time  of  their  subscriptions  pay,  nor  have  they  since  paid  the 
full  par  value  of  their  said  subscriptions,  but  that  a  large 
amount  is  due  thereon  from  each  of  the  said  defendants 
respectively,  to-wit  [name  amount  due  from  each  defendant,  or 
if  amounts  due  cannot  be  ascertained,  say:  but  that  the  amount 
paid  by  each  defendant,  as  well  as  the  amount  remaining 
due  from  him  on  said  subscriptions  said  plaintiff  has  not 
been  able  to  ascertain,  but  upon  information  and  belief 
alleges  that  each  of  said  defendants  still  owes  upon  his 
said  subscriptions  of  stock  a  large  amount]. 

VIII.  The  plaintiff  further  alleges,  upon  information  and 
belief,  that  at  some  time  in  the  year  19.  .,  the com- 
pany, a  corporation  existing  under  the  laws  of  this  state, 
became  indebted  to  the  defendant  corporation  in  a  large 
sum,  to-wit,  the  sum  of  about dollars,  which  it  liqui- 


Chapter  LXXIL]  1139  [Form  1675. 

dated  in  whole  or  in  part  by  delivering  to  the  defendant 
corporation  a  large  amount  of  its  first  mortgage  bonds  and 
other  securities  of  great  value,  the  exact  amount  of  which 
the  plaintiff  cannot  state;  that  after  the  delivery  of  the  said 
bonds  and  securities,  and  while  the  said  corporation  defend- 
ant was  insolvent  and  indebted  to  the  plaintiff  as  aforesaid, 
the  said  defendants  [name  the  corporate  officers  charged  with 
conveying  property  to  themselves]  in  their  capacity  as  directors 
of  said  corporation  defendant  voted  to  and  did  convey  and 
assign  to  themselves  jointly,  or  to  some  of  them  individually, 
the  said  bonds  and  other  securities,  or  some  considerable  part 
thereof,  without  consideration,  or  for  a  pretended  considera- 
tion which  did  not  in  fact  exist,  for  the  purpose  of  hindering 
and  defrauding  the  creditors  of  said  defendant  corporation, 
and  that  the  said  bonds  and  securities  so  transferred  as 
aforesaid  are  still  in  the  possession  of  the  said  defendants 
[name  them]  and  that  the  same,  or  the  proceeds  thereof  ought 
in  equity  to  be  applied  to  the  payment  of  the  aforesaid  debt 
of  the  plaintiff. 

IX.  [Insert  allegation  negativing  collusion,  as  in  Form 
1654.] 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
said  defendants  [name  them]  and  each  of  them,  be  required  to 
disclose  any  and  all  real  estate  or  personal  property  held  by 
them  or  either  of  them  in  trust  for  said  corporation,  or  ac- 
quired by  them  in  fraud  of  the  creditors  thereof,  and  that 
the  said  defendants  who  are  stockholders  in  the  said  defend- 
ant corporation  be  required  to  disclose  the  amounts  paid  by 
them  respectively  on  their  subscriptions  to  stock,  and  how 
much  thereof  is  still  unpaid;  that  the  said  transfers  of  pro- 
perty made  by  the  said  corporation  defendant  to  the  remain- 
ing defendants  in  fraud  of  its  creditors  as  aforesaid  be  can- 
celled and  held  void,  and  that  the  said  directors  be  required 
by  judgment  of  this  court  to  turn  over  to  the  receiver  to 
be  appointed  in  this  action  all  such  property  so  held  by  them 
or  either  of  them,  and  to  account  for  the  proceeds  of  any  of 
such  property  which  they  or  either  of  them  have  disposed  of; 
that  the  said  defendants,  and  each  and  all  of  them,  be  en- 
joined and  restrained  from  selling,  assigning  or  transferring 
any  of  the  property  of  the  said  corporation,  and  any  of  the 
property  assigned  or  conveyed  to  them  by  the  said  corpora- 
tion in  fraud  of  its  creditors  as  aforesaid;  that  a  receiver  be 


Forms  1676,  1677.]  1140  [Chapter  LXXIL 

appointed  in  this  action  to  take  charge  of  the  property  and 
effects  of  the  said  corporation  defendant  which  may  be  re- 
covered as  aforesaid;  that  the  plaintiff's  said  judgment  be 
paid  out  of  the  proceeds  of  the  said  property  so  recovered; 
and  that  the  plaintiff  have  such  other  and  further  rehef  as 
may  be  just  and  equitable. 

1676.  By  judgment  creditor  to  enforce  resulting  trust 

in  land  purchased  by  debtor  and  conveyed  to  a 
third  person. 

I,  II,  III,  and  IV.     [As  in  Form  1654.] 

V.  That  on  the  ....  day  of ,  19 . .  the  defendant 

C . . . .  D .  .  . .  being  at  that  time  wholly  insolvent  and  in- 
debted to  this  plaintiff  and  other  persons  purchased  of  one 
L . . . .  M , . . .  the  real  estate  hereinafter  described  and  paid 
from  his  own  moneys  the  entire  consideration  therefor  but 
caused  the  title  thereof  to  be  taken  in  the  name  of  the  de- 
fendant E. .  .  .  F. . . .  in  secret  trust  for  the  benefit  of  the 
said  C . . . .  D .  .  .  .  and  with  intent  thereby  to  defraud  the 
plaintiff  and  other  creditors  of  the  said  C . . . .  D . . . .  and 
to  prevent  and  hinder  the  collection  of  their  just  claims. 

VI.  [In  Wisconsin  insert  allegation  negativing  collusion 
as  in  Form  1654.] 

VII.  That  the  real  estate  so  conveyed  is  described  as 
follows  [insert  description]. 

WHEREFORE  plaintiff  demands  judgment  that  defend- 
ant E . . .  .  F .  .  .  .  holds  title  to  said  premises  in  trust  for  the 
creditors  of  defendant  C . .  . .  D .  .  .  . ;  that  a  receiver  of  said 
premises  be  appointed  and  defendant  E....  F...,  be  di- 
rected to  make  and  deliver  to  said  receiver  a  deed  of  said 
premises;  that  said  receiver  be  directed  to  sell  the  same  and 
out  of  the  proceeds  thereof  pay  to  plaintiff  the  amount  of  his 
said  judgment,  with  interest  and  the  costs  of  this  action; 
and  for  such  other  relief  as  may  be  just. 

1677.  Outline  of  complaint  against  agent  wrongfully 

taking  title  of  real  estate  in  his  own  name. 

I.  [Allege  the  agency  of  the  defendant  for  the  plaintiff  and 
the  fact  that  the  defendant  had  the  plaintiff's  money  in  his  hands, 
and  in  the  course  of  his  agency  was  charged  with  the  duty 
of  purchasing  real  estate.] 


Chapter  LXXIL]     '  1141  [Form  1678. 

II.  [Allege  that  the  agent  in  pursuance  of  his  agency  pur- 
chased a  piece  of  real  estate,  describing  it,  and  fraudulently 
caused  a  deed  to  be  made  out  in  his  own  name  as  grantee  without 
the  knowledge  of  the  plaintiff.] 

III.  [7/  improvements  were  put  upon  the  real  estate  by  the 
plaintiff  or  with  the    plaintiff's  money,     allege  that  fact.] 

IV.  [Allege  when  the  plaintiff  first  learned  that  the  deed 
had  been  taken  in  the  name  of  the  agent  and  allege  that  the 
plaintiff  has  demanded  of  the  defendant  that  he  convey  the 
premises  to  the  plaintiff.] 

WHEREFORE  [demand  of  judgment  that  the  defendant 
holds  title  to  the  premises  as  trustee  for  the  plaintiff  and  be 
adjudged  to  convey  the  same  to  the  plaintiff]. 

1678.  By  judgment  creditor  to  reach  proceeds  of  real 
property  in  hands  of  fraudulent  grantee,  where 
such  grantee  has  conveyed  to  bona  fide  pur- 
chaser. 

I,  II,  III  and  IV  [as  in  Form  1654.] 

V.  That  subsequent  to  the  creation' of  the  indebtedness 
upon  which  said  judgment  is  founded,  and  on  or  about  the 

....    day   of    ,    19.,,   the   defendant   C...    D.... 

[judgment-debtor]  was  the  owner  of  the  following  described 
premises  [describe  them],  and  that  on  or  about  said  day  the 
defendant  conveyed  said  premises  to  the  defendant  E . . . . 
F. .  . .  without  consideration;  that  said  conveyance  was  made 
by  the  defendant  G . . . .  D . . . .  and  received  by  the  defend- 
ant E . . .  .  F .  . . .  with  intent  to  hinder,  delay  and  defraud 
the  plaintiff  out  of  the  aforesaid  indebtedness. 

VI.  That  thereafter  and  on  or  about  the   ....   day  of 

,    19..,  the  defendant  E....    F,...   conveyed  said 

premises  to  one  G. . . .  H . . . .  and  received  in  payment  there- 
for the  sum  of dollars  [or,  a  large  sum  of  money,  the 

exact  amount  of  which  is  unknown  to  plaintiff]. 

VII.  [In  Wisconsin  insert  allegation  negativing  collusion 
as  in  Form  1654.] 

WHEREFORE  plaintiff  demands  judgment  that  the 
deed  from  the  defendant  G .  .  . .  D .  .  .  .  to  the  defendant 
E ....  F ....  be  adjudged  fraudulent  and  void  as  to  the  plain- 
tiff; that  the  moneys  received  by  the  defendant  E.... 
F . . . .   upon  the  conveyance  of  the  aforesaid  premises  be 


Form  1679.]  1142  [Chapter  LXXII. 

adjudged  to  have  been  received  by  the  said  defendant  in 
trust  for  this  plaintiff  as  a  creditor  of  the  defendant  G . . . . 
D....,  and  that  the  defendant  E...,  F....  account  to 
plaintiff  for  any  such  moneys  so  received  by  him  and  any 
rents  and  profits  thereof  and  of  said  premises;  that  said 

defendant  E F be  decreed  to  pay  the  same  or  so 

much  thereof  as  may  be  necessary  to  plaintiff  in  satisfaction 
of  said  judgment  and  interest  thereon,  and  the  costs  of  this 
action,  and  that  plaintiff  may  have  such  other  and  further 
relief  as  may  be  just. 

1679.    By  receiver  of  building  association  against  with- 
drawing members  for  contribution. 

I.  [Allege  incorporation  of  defendant  as  in  Form  848.] 

II.  [Allege  insolvency  of  the  corporation  and  appointment 
of  the  plaintiff  as  receiver,  also  his  qualification  and  entry  on 
his  duties.] 

III.  [Allege  that  the  defendants  became  borrowing  members 
of  the  association  and  give  dates  and  amounts  according  to 
the  fact  and  also  allege  their  withdrawal  and  the  cancellation 
of  their  mortgages  and  the  assessment  which  was  made  upon 
them  at  the  time  of  their  withdrawal.] 

IV.  That  said  association  was  at  that  time  hopelessly 
insolvent,  and  that  an  assessment  of  ....  percent  was  far 
from  sufficient  to  meet  the  actual  losses  sustained,  and  that 
in  thus  withdrawing  with  a  ....  per  cent  assessment  the 
defendants  escaped  their  proper  proportion  of  the  losses  of 
said  company  occurring  while  they  were  members  and  that 

an  assessment  of  at  least   percent  w^ould  have  been 

required  to  meet  all  of  such  losses. 

V.  [//  there  has  been  incompetency,  misconduct  or  bad  faith 
on  the  part  of  the  directors,  and  collusion  with  the  defendants 
it  may  be  alleged  here.] 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
defendants  herein  be  declared  to  be  members  and  share- 
holders of  said  company  for  the  purpose  of  contributing 
their  proper  proportion  of  the  losses  thereof;  that  an  account 
be  taken  between  them  and  the  said  company,  and  that  the 
mutual  rights  and  obligations  be  determined,  and  that  upon 
a  full  hearing  thereof  they  may  be  required  to  contribute 
their  just,  proper  and  equitable  proportion  of  all  losses  sus- 


Chapter  LXXIL]  1143  [Form  1680- 

tained  by  said  company  previous  to  the  receipt  by  them  of 
their  money  and  withdrawal  from  said  company,  and  for  such 
further  relief  as  may  be  just. 

1680.    By  sheriff  suing  in  aid  of  attachment  (Wis.  Stats. 
1913  sec.  2741). 

I.  That  at  all  the  times  hereinafter  mentioned  plaintiff 
was  and  now  is  the  sheriff  of  the  county  of duly  elect- 
ed, qualified  and  acting  as  such. 

II.  That  on  or  about  the    ....    day  of   ,   19.., 

plaintiff  received  a  writ  of  attachment,  duly  issued  out  of 
this  court,  and  to  him  directed  and  delivered,  in  an  action 
against  one  E . . . .  F . . . . ,  whereby  plaintiff  was  directed  to 
attach  and  safely  keep  all  of  the  property  of  said  E . . . . 
F . . . .  in  said  county  or  so  much  thereof  as  might  be  suffi- 
cient to  satisfy  the  demand  of  the  plaintiff  in  said  action,  of 
dollars,  with  costs  and  expenses. 

III.  That  the  defendant  then  had  in  his  possession 

dollars  belonging  to  E . . . .  F . . . .  [or,  was  indebted  to  the 

said  E . . . .   F . . . .   in  the  sum  of   dollars  for,  state 

briefly  the  cause  of  action]. 

IV.  That  on  or  about  the   ....  day  of   ,  19.., 

plaintiff  made  due  service  of  said  writ  of  attachment  upon 
the  defendant,  by  delivering  to  and  leaving  with  him  a  copy 
thereof  and  of  the  affidavit  and  undertaking  upon  which  it 
was  granted  [if  the  statute  requires  the  service  of  any  other 
papers  allege  that  they  were  served],  whereupon  the  plaintiff 
became   entitled   to   receive   from   the   defendant,    and   he 

became  answerable  to  the  plaintiff  for  said   dollars, 

but  the  defendant  refuses  to  pay  the  same  or  any  part  thereof 
over  to  the  plaintiff,  or  to  account  to  him  therefor. 

WHEREFORE,  etc. 


CHAPTER  LXXIII. 

COMPLAINTS    IN    EQUITABLE    ACTIONS    TO    RE- 
LIEVE AGAINST  FRAUD  OR  MISTAKE. 


1681.  Complaint  to  set  aside  a  deed 

fraudulently  represented 
to  be  an  instrument  of 
another  character. 

1682.  Complaint  to  set  aside  a  deed 

obtained  by  fraud,  and  for 
reconveyance. 

1683.  The  same,  another  form. 

1684.  For    rescission    of    contract 

and  repayment  of  ad- 
vances, on  the  ground  of 
fraud. 

1685.  To  reform  a  deed  by  correct- 

ing mistaken  description. 

1686.  The  same,  another  form. 


1687.  To   correct   mistakes   in    an 

account  stated,  and  for 
judgment  thereon. 

1688.  Outline  of  complaint  to  set 

aside  exchange  of  lands  on 
the  ground  of  fraudulent 
representations. 

1689.  Complaint   to    obtain    relief 

from  the  legal  effect  of  a 
quitclaim  deed  executed 
by  plaintiff  under  mistaken 
idea  as  to  its  effect  on  a 
mortgage  held  by  him  on 
the  premises. 


The  power  of  a  court  of  equity  to  relieve  against  the  conse- 
quences of  fraud  or  mutual  mistake  of  fact,  and  to  decree  the 
reformation  or  cancellation  of  written  instruments  pro- 
cured thereby  is  very  extensive  and  frequently  exer- 
cised. Complaint  seeking  relief  on  these  grounds  must 
clearly  state  the  facts  which  constitute  the  fraud  or  the  mis- 
take, as  well  as  the  facts  which  exonerate  the  plaintiff  from 
the  charge  of  negligence  in  making  the  contract  and  laches  in 
seeking  his  remedy.  These  facts  may  be  so  numerous  and 
varied  that  forms  can  be  hardly  more  than  suggestive. 

1681.  Complaint  to  set  aside  a  deed  fraudulently  repre- 
sented to  be  an  instrument  of  another  character 
(sustained  by  Johnson  v.  Wetmore,  12  Barbour, 
433). 

I.  That  on  the   ....  day  of ,  19..,  the  plaintiff 

was  the  owner  of  a  farm  situate  in  the  town  of county 

of [briefly  describing  it]. 

II.  That  the  plaintiff,  being  then  old,  infirm,  and  blind, 
and  by  reason  thereof  incapacitated  from  attending  properly 
to  business,  the  defendants,  on  that  day,  fraudulently  taking 


Chapter  LXXIIL]  1145  [Form  1682. 

advantage  of  the  plaintiff's  said  incapacity,  which  they  well 
knew,  procured  him  to  sign  a  certain  writing,  without  paying 
him  any  consideration  therefor,  and  which  writing  they 
falsely  and  fraudulently  represented  to  be  a  mere  matter  of 
form  [or  state  what  representation  was  made]. 

III.     That  the  plaintiff  has  since,  and  on  the  ....  day  of 

,  19.  .,  applied  to  the  defendants  for  said  writing,  or 

for  information  as  to  the  contents  thereof;  but  the  defendants 
refused  to  allow  him  to  see  said  writing,  or  to  give  him  any 
information  concerning  the  same.  That,  as  the  plaintiff  is 
informed  and  believes,  the  said  writing  is  under  seal,  and  is  a 
deed  of  said  premises,  and  conveys  the  same,  or  some  interest 
therein,  to  the  defendants;  and  that  they  intend  to  use  the 
same  for  their  own  benefit,  and  to  the  prejudice  of  the  plain- 
tiff. 

WHEREFORE  plaintiff  asks  judgment  that  the  said  deed 
or  writing  be  declared  void;  and  that  the  defendant  produce 
the  same,  and  deliver  the  same  up  to  be  cancelled;  and  that 
the  plaintiff  have  such  other  and  further  relief  as  may  be 
just  and  equitable,  and  that  he  recover  the  costs  of  this 
action. 

1682.    Complaint  to  set  aside  a  deed  obtained  by  fraud, 
and  for  reconveyance. 

I.  [Allege  ownership  of  land  as  in  Form  1681.] 

II.  That  on  said  day  the  defendant  applied  to  the  plain- 
tiff to  purchase  the  said  real  estate,  and  as  the  plaintiff  re- 
sided at  the  distance  of  ....  miles  from  said  land,  and  knew 
nothing  of  its  value,  or  of  the  improvements  being  made  in 
its  vicinity  tending  to  enhance  the  value  thereof,  he  applied 
to  the  defendant,  who  was  well  acquainted  with  the  same  as 
to  its  value  and  location,  and  the  improvements  being  made 
in  its  vicinity.     The  defendant  thereupon  informed  plaintiff 

that  the  land  was  not  worth  to  exceed dollars,  and 

situated  ....  miles  from  any  settlement,  and  that  he  knew  of 
no  improvements  being  made  in  that  vicinity  calculated  to 
enhance  the  value  thereof  [or  otherwise  state  the  representa- 
tions made]. 

III.  That  relying  upon  said  representations  of  said  de- 
fendant, the  plaintiff  sold  and  conveyed  said  land  to  him  for 
the  sum  of dollars. 


Formless.]  1146  [Chapter  LXXIII. 

IV.  That  at  the  time  said  defendant  made  the  said  repre- 
sentations the  settlement  extended  to  said  land,  and  the  city 

of containing  three  thousand  inhabitants,  was  less 

than  one  mile  therefrom,  and  that  said  premises,  at  the  time 
of  the  execution  of  said  deed,  were  well  worth  in  cash  the 

sum  of dollars,  of  all  which  said  defendant  was  well 

aware  at  the  time  he  made  said  false  and  fraudulent  repre- 
sentations, but  of  which  plaintiff  had  no  knowledge  whatever. 

V.  That  as  soon  as  plaintiff  discovered  that  said  represen- 
tations were  false,  to-wit,  on  the  ....  day  of ,  19 . . , 

he  applied  to  the  defendant  and  tendered  to  him  said  sum  of 

dollars  so  paid  for  said  premises,  and  requested  him 

to  reconvey  the  same  to  plaintiff,  which  he  refused  and  still 
refuses  to  do;  and  that  plaintiff,  therefore,  brings  said  sum  of 

dollars  into  court  for  the  purpose  of  having  the  same 

delivered  to  the  defendant,  when  he  will  accept  the  same,  and 
reconvey  said  premises  to  the  plaintiff. 

WHEREFORE  the  plaintiff  demands  judgment  that  said 
defendant  be  required  to  reconvey  said  premises  to  the 
plaintiff,  and  that  the  title  to  the  same  may  be  quieted  and 
confirmed  in  the  plaintiff,  and  for  such  other  relief  as  may 
be  equitable,  and  for  the  costs  and  disbursements  of  this 
action. 

1683.    The  same,  another  form. 

I.  That  on  the  ....  day  of ,  19 . .,  the  plaintiff  was 

the  owner  in  fee  of  the  following  described  lands  and  prem- 
ises [describe  same]  which  were  of  the  value  of dollars. 

II.  That  the  defendant,  on  that  day,  offered  to  purchase 
said  premises,  and  in  order  to  induce  the  plaintiff  to  convey 
the  same  to  him,  offered  to  transfer  and  assign  to  the  plain- 
tiff in  exchange  therefor  [here  describe  property  exchanged,  as 
for  instance:  fifty  shares  of  stock  in  a  certain  corporation 
known  as  the company. 

III.  That  to  induce  said  plaintiff  to  make  said  exchange 
the  defendant  falsely  and  fraudulently  represented  to  the 
plaintiff  that  [here  state  the  false  representations  of  fact  fully 
and  particularly]. 

IV.  That  in  truth  and  in  fact  the  representations  so 
made  by  said  defendant  were  each  and  all  false  and  fraudu- 
lent, as  the  defendant  then  well  knew ;  and  that  he  made  the 


Chapter  LXXIIL]  1147  [Form  1683. 

same  for  the  purpose  of  defrauding  the  plaintiff  out  of  his 
said  land;  that  [here  negative  directly  and  specifically  each 
false  statement],  all  of  which  the  said  defendant  knew  when 
he  made  the  representations  aforesaid. 

V.  That  relying  upon  said  false  and  fraudulent  represen- 
tations, and  believing  the  same  to  be  true,  the  plaintiff  ac- 
cepted the  defendant's  offer,  and  on  the  ....  day  of , 

19..,  in  consideration  of  the  transfer  of  said  property  by 
defendant  to  him,  the  plaintiff  made,  executed  and  deliv- 
ered to  the  defendant  a  deed  of  warranty  of  the  above  de- 
scribed premises  [of  which  deed  a  copy  is  hereto  annexed, 
marked  Exhibit  A  and  made  a  part  of  this  complaint],  and 
thereupon  let  the  said  defendant  into  possession  of  said 
premises  which  the  defendant  now  holds. 

VI.  That  the  said  deed  was  afterwards,  on  the    .... 

day  of 19. .,  duly  recorded  in  the  ofTice  of  the  register 

of  deeds  for county  in  book  D  of  deeds,  on  page  .... 

VII.  That  the  plaintiff  did  not  discover  the  falsity  of  said 
representations  so  made  to  him  by  the  defendant  until  the 

....  day  of ,  19 . .,  on  which  day  he  tendered  back  to 

the  defendant  [or  offered  to  return  to  the  defendant]  the  said 
personal  property  so  delivered  to  plaintiff  by  the  defendant 
[with  a  properly  executed  assignment  thereof]  and  demanded 
that  defendant  reconvey  the  said  premises  to  him,  this  plain- 
tiff, [and  presented  to  the  defendant  a  quit  claim  deed,  duly 
filled  out  and  ready  to  be  signed  and  executed  for  that  pur- 
pose] and  demanded  that  the  defendant  give  up  to  the  plain- 
tiff the  possession  of  said  premises,  but  that  the  said  defend- 
ant wholly  refused  and  still  refuses  to  reconvey  said  land,  or 
to  give  up  the  possession  thereof. 

VIII.  That  the  plaintiff  still  has  said  property  so  trans- 
ferred to  him  by  defendant  and  [if  property  is  capable  of  sur- 
render into  court:  now  brings  the  same  into  court  for  the 
benefit  of  defendant;  or  if  not:  is  ready  and  willing  to  de- 
liver the  same  to  defendant,  as  the  court  shall  direct]. 

WHEREFORE  the  plaintiff  demands  judgment  that  said 
conveyance  be  cancelled,  and  that  the  defendant  be  adjudged 
to  reconvey  the  said  premises  to  the  plaintiff,  and  deliver 
possession  thereof  to  the  plaintiff,  and  for  such  other  relief 
as  may  be  equitable,  and  for  the  costs  of  this  action. 


Forms  1684,  1685.1  1148  [Chapter  LXXIII. 

1684.  For  rescission  of  contract  and  repayment  of  ad- 

vances, on  the  ground  of  fraud  (see  Belknap  v. 
Seely,  14  N.  Y.  143). 

I.  That  the  plaintiff,  on  the  ....  day  of ,  19. ., 

bargained  with  the  defendant  to  buy  of  the  defendant  a 

piece  of  ground  at [briefly  designating  it]    which  was 

chiefly  valuable  for  the  purpose  of  dividing  into  city  lots, 
and  purchased  by  the  plaintiff  for  that  purpose,  as  defendant 
well  knew. 

II.  That  the  defendant,  well  knowing  said  premises  to 
contain  a  much  less  quantity  than  ....  acres  of  land,  viz. 
....  acres  only,  then  and  there  falsely  and  fraudulently 
represented  to  him  that  the  premises  contained  ....  acres; 
and  falsely  and  fraudulently  induced  him  to  buy  the  said 
premises  for dollars. 

III.  That  plaintiff,  relying  on  said  representations,  agreed 

in  writing  to  buy  the  premises,  and  paid  defendant 

dollars,  part  of  the  purchase  money  thereof. 

IV.  That  the  premises  did  not  contain  ....  acres,  but 
only  ....  acres;  whereby  the  plaintiff  was  deprived  of  all 
the  benefit  and  advantage  w^hich  he  otherwise  would  have 
derived  from  the  said  sale. 

V.  That  on  or  about  the  ....  day  of ,  19. .,  as 

soon  as  he  had  ascertained  that  the  said  representations  were 
untrue,  he  tendered  to  defendant  a  duly  executed  quit  claim 
deed  of  said  lands,  and  demanded  of  defendant  the  rescission 

of  said  agreem.ent  and  a  return  of  said dollars,  but 

defendant  refused  and  still  refuses  to  consent  thereto. 

WHEREFORE  the  plaintiff  demands  judgment  for 

dollars,  with  interest  from  the  ....  day  of ,  19. . ;  that 

the  said  agreement  of  purchase  be  delivered  up  and  cancelled; 
and  that  the  plaintiff  have  such  other  and  further  relief  as 
may  be  equitable,  with  the  costs  of  this  action. 

1685.  To  reform  a  deed  by  correcting  mistaken  descrip- 

tion. 

I.     That  on  the  ....  day  of ,  19. .,  the  defendant 

executed  and  delivered  to  the  plaintiff,  under  his  hand  and 
seal,  a  deed,  of  which  the  following  is  a  copy  [give  exact  copy 
of  deed  with  erroneous  description]. 


Chapter  LXXIIL]  1149  [Form  1686. 

II.  That  the  description  therein  given  of  the  premises 
intended  to  be  conveyed  thereby  was  erroneous,  and  in  fact 
does  not  describe  any  premises  whatever;  that  the  word 
"southerly,"  as  last  used  in  said  description,  was  inserted 
by  mistake  of  the  parties  to  said  deed  [or  otherwise;  and  if 
fraud  is  relied  on,  the  circumstances  of  it  should  be  specially 
stated],  instead  of  the  word  "northerly"  which  should  have 
been  used  instead  thereof;  and  that  in  order  to  make  said 
deed  pass  any  premises  whatever  to  this  plaintiff,  and  to 
make  it  conform  to  the  actual  intentions  of  the  parties,  it 
is  necessary  that  the  said  description  should  be  amended 
by  substituting  the  word  "northerly"  for  the  word  "souther- 
ly", where  the  latter  word  is  last  used  therein  [or  say: 
amended  so  as  to  read  as  follows,  and  insert  description  in  full 
as  amended]. 

III.  That  the  plaintifT  has  paid  to  the  defendant  for  the 
said  premises  the  consideration  expressed  in  said  deed. 

WHEREFORE  this  plaintiff  demands  judgment  that  said 
deed  be  reformed  as  aforesaid,  and  for  such  further  relief  as 
may  be  just,  with  costs. 

1686.    The  same,  another  form. 

I.  That  on  or  about  the  ....  day  of ,  19. .,  the 

plaintiff  and  defendant  negotiated  a  bargain  and  sale  by 
defendant  to  plaintiff  of  the  following  described  premises, 

to-wit,  [describe  premises]  for  the  sum  of dollars  to 

be  paid  by  plaintiff. 

II.  That  in  pursuance  of  said  agreement,  the  said  de- 
fendant on  said  day  executed  and  delivered  to  the  plaintiff 
a  deed  of  warranty,  intending  thereby  to  convey  the  prem- 
ises above  described,  and  the  plaintiff  thereupon  paid  said 

sum  of dollars,  the  consideration  for  said  premises, 

believing  that  he  was  receiving  a  deed  of  the  premises  above 
described,  and  immediately  caused  the  same  to  be  recorded 

in  the  office  of  the  register  of  deeds  for county,  on 

the  ....  day  of ,  19. .,  in  volume  ....  of  deeds,  on 

page  .... 

III.  That  by  mistake  of  the  parties  in  the  drafting  of  said 
deed,  the  premises  were  erroneously  described  therein  as  [state 
description  in  deed]  instead  of  the  premises  to  be  conveyed  as 
aforesaid,  and  that  the  defendant  did  not  in  fact  own  the 


Form  1687.]  1150  [Chapter  LXXIII. 

premises  actually  described  in  said  deed  or  have  any  interest 
therein. 

IV.  That  it  is  necessary  that  the  said  deed  be  reformed  so 
that  the  description  therein  shall  read  as  follows  [here  give 
true  description  of  land  intended  to  be  conveyed], 

V.  That  the  plaintiff,  on  the  ....  day  of ,  19. ., 

requested  the  defendant  to  execute  a  deed  in  correction  of 
said  mistake  [and  tendered  him  for  execution  a  warranty  deed 
containing  the  proper  description,  and  requested  him  to 
execute  the  same]  but  he  refuses  so  to  do. 

WHEREFORE  the  plaintiff  demands  judgment  that  said 
deed,  executed  and  recorded  as  aforesaid,  be  reformed  so  as 
to  correctly  describe  the  premises  intended  to  be  conveyed, 
and  for  such  other  relief  as  may  be  agreeable  to  equity,  and 
for  the  costs  of  this  action. 


1687.    To  correct  mistakes  in  an  account  stated,  and  for 
judgment  thereon. 

I.  That  the  plaintiff  and  defendant,  having  had  mutual 

dealings,  afterwards,  on  the  ....  day  of ,  19.  .,  came 

to  a  mutual  accounting,  upon  which  a  statement  of  the  said 
account  was  made  in  writing,  of  which  a  copy  is  annexed  as 

a  part  of  this  complaint,  whereby  a  balance  of dollars 

was  found  to  be  due  from  the  plaintiff  to  the  defendant  [or, 
from  the  defendant  to  the  plaintiff]  on  final  adjustment. 

II.  That  since  the  said  statement  of  account  the  plaintiff 
has  discovered  errors  and  false  charges  [or,  credits,  or  both] 
therein,  of  which  he  was  wholly  ignorant  at  the  time  of  such 
settlement. 

III.  That  in  the  statement  of  said  account  so  settled  he 
is  charged  [here  state  the  items  wrongfully  charged,  and  show 
what  is  the  error.] 

IV.  That  the  following  items,  which  ought  to  have  been 
entered  to  his  credit  in  said  account,  were  wholly  omitted 
therefrom,  by  mistake  and  oversight,  to-wit  [here  set  forth 
the  items,  with  date,  amount,  etc.] 

V.  That  the  following  items  are  erroneous  in  amount,  in 

this:  that  ihe  credit  for should  have  been  of 

dollars,  instead  of  only   dollars  [stating  briefly  the 

grounds  why  it  should  have  been  more]. 


Chapter  LXXIIL]  1151  [Form  1688. 

VI.  That  the  said  account  ought  to  be  corrected  as  above 

mentioned;  and  the  balance  thereon  ought  to  be    

dollars  in  favor  of  the  [plaintiff]  instead  of  being   

dollars  in  favor  of  the  [defendant]. 

VII.  That  as  soon  as  the  plaintiff  discovered  the  said 
mistakes  and  errors,  he  called  on  the  defendant,  on  the  .... 

day  of ,  19. .,  and  pointed  the  same  out  to  him,  and 

then  requested  the  defendant  to  correct  the  same,  and  to 
restate  the  said  account,  with  the  mistakes  and  errors  afore- 
said corrected;  but  the  defendant  refused  to  do  so,  or  to  pay 

the  plaintiff  any  part  of  said  sum  of dollars,  due  to 

him  at  the  time  said  account  was  stated  [or,  and  to  accept  the 

sum  of dollars  from  the  plaintiff  in  full  payment  of 

said  account]. 

WHEREFORE  the  plaintiff  demands  judgment  that  he 
may  be  allowed  to  prove  the  said  errors  and  mistakes  in  the 
stating  of  said  account,  and  that  the  same  be  restated;  that 
judgment  may  be  rendered  against  the  defendant  for  the 

balance  of dollars  due  him  on  said  corrected  account, 

with  interest  thereon  from  the  ....  day  of 19 . .,  with 

the  costs  of  this  action. 

1688.    Outline  of  complaint  to  set  aside  exchange  of  lands 
on  the  ground  of  fraudulent  representations. 

I.  [Allege  that  parties  negotiated  for  an  exchange  of  lands 
describing  the  land  owned  by  plaintiff  and  that  owned  by 
defendant.] 

II.  [Allege  the  representations  made  by  the  defendant  in 
order  to  induce  the  exchange,  if  the  lands  exchanged  were  in  a 
distant  state  allege  the  fact  and  the  artifices,  if  any,  used  by 
defendant  to  prevent  investigation  or  discovery  of  the  falsity 
of  the  representations.] 

III.  [Allege  the  facts  showing  that  the  plaintiff  was  justi- 
fied in  relying  upon  and  did  rely  upon  the  representations 
in  making  the  exchange.] 

IV.  [Allege  the  making  of  the  deeds,  if  deeds  were  made.] 

V.  [Negative  specifically  the  false  representcdions.] 

VI.  [Allege  plaintiffs  offer  to  reconvey  and  demand  that  the 
defendant  reconvey  and  show  that  plaintiff  has  offered  and  is 
ready  to  restore  all  that  he  has  received  and  place  defendant  in 
the  same  position  as  before  the  exchange.] 


Form  1689.]  1152  [Chapter  LXXIII. 

WHEREFORE,    etc.    [Demand  judgment  for    rescission, 
cancellation  of  deeds,  reconveyances,  etc.] 

1689.  Complaint  to  obtain  relief  from  the  legal  effect  of 
a  quitclaim  deed  executed  by  plaintiff  under 
mistaken  idea  as  to  its  effect  on  a  mortgage  held 
by  him  on  the  premises. 

[See  complaint  sustained  and  reported  in  substance   in  Ben- 
son vs.  Markoe,  37  Minn.  30;  33  N.  W.  38.] 


CHAPTER  LXXIV. 

COMPLAINTS  IN  ACTIONS  TO  DISSOLVE 
PARTNERSHIP. 


1690.  To  dissolve  partnership  for 
various  causes. 

169L  The  same,  alleging  misappro- 
priation of  funds  by  the 
defendant. 

1692.  By  administrator  of  deceased 
partner,   against   the  sur- 


1693.  To     dissolve    an    insolvent 

partnership  when  partners 
cannot  agree. 

1694.  Outline     of     complaint     for 

accounting  on  a  joint  ad- 
venture where  defendant 
has  received  the  proceeds. 


1690.    To  dissolve  partnership  for  various  causes. 

I.  That  on  the  ....  day  of ,  19 . . ,  the  plaintiff  and 

the  defendants  [copartners]  formed  a  partnership  for  the  pur- 
pose of  [state  business]  under  articles  of  copartnership,  of 
which  a  copy  is  annexed  and  made  part  of  this  complaint 
and  marked  Exhibit  A.  [Or,  if  the  agreement  was  not  in 
writing,  state  its  effect  bric^fJy,  e.  g., :  under  an  agreement  that 

the  plaintiff  should  contribute  the  use  of    dollars 

capital,  and  that  the  plaintiff  and  the  defendants  [copart- 
ners] should  co-operate  in  the  care  and  labors  of  the  business, 
and  that  the  plaintiff  should  receive  one-half  of  the  net 
profits,  and  upon  a  dissolution  of  the  partnership,  repay- 
ment of  his  capital,  and  that  the  defendants  should  re- 
ceive each  one-quarter  of  the  net  profits.] 

II.  That  the  plaintiff  and  defendants  now  own  a  valuable 

lease  of  premises  No ,   street  in ,  and  a 

large  and  valuable  stock  of  goods;  that  they  have  also  a 
large  amount  of  debts  due  them,  and  a  valuable  good-will, 
which  are  of  far  greater  value  when  taken  together  than  if 
separated;  and  that  no  equitable  divisions  of  the  assets  and 
good-will  of  said  partnership  can  be  made  without  great  loss 
to  all  parties,  except  by  a  sale  thereof  together,  and  a  divi- 
sion of  the  proceeds  thereof. 

III.  [Where  the  dissolution  was  by  an  assignment,  say: 

That  on  the   ....   day  of   ,  19..,  the  defendant  [a 

partner]  without  the  knowledge  or  assent  of  the  plaintiff,  by 

73 


Form  1691.1  1154  [Chapter  LXXIV. 

writing  assigned  and  transferred  to  the  defendant  [assignee] 
all  his  interest  in  said  partnership,  and  all  his  right  and  title 
to  any  and  all  property  belonging  to  said  firm;  whereby  said 
partnership  became  dissolved.] 

[Or,  where  the  dissolution  is  by  exclusion  of  the  plaintiff: 

That  on  the   ....   day  of   ,   19..,  the  defendant,  a 

partner,  took  exclusive  possession  of  the  partnership  books 
and  stock,  and  then  and  ever  since  has  prevented  the  plain- 
tiff from  having  access  to  the  same.] 

[Or,  where  the  dissolution  is  upon  notice  given  by  one  of  the 
partners:  That  on  the  ....  day  of ,  19 . .,  the  defend- 
ant, or  plaintiff,  pursuant  to  the  provision  of  said  agreement, 
gave  to  the  defendant  or  plaintiff  a  written  notice  of  his  inten- 
tion to  dissolve  said  agreement,  of  which  a  copy  is  annexed 
as  a  part  of  this  complaint,  and  marked  Exhibit  B.] 

[Or,  where  the  dissolution  is  on  the  ground  of  the  insolvency 
or  arrest  of  a  partner:  That  the  defendant  before  this  action 
and  on  or  about  the  ....  day  of ,  19. .,  became  in- 
solvent, was  arrested  on  the day  of ,  19 . .,  at  the 

suit  of  one  M . . . .  N . . . .  for  a  debt  of dollars  (and 

in  consequence  of  such  arrest,  has  ever  since  been  a  prisoner 
at ) ;  and  that  by  reason  of  such  insolvency  (and  ar- 
rest) the  partnership  has  been  greatly  discredited,  and  has 
sustained  loss  by  the  absence  of  said  defendant  therefrom.] 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
said  partnership  be  adjudged  dissolved;  that  a  receiver  of  the 
property,  rights  and  good-will  of  said  partnership  be  appoint- 
ed, with  power  to  dispose  of  the  same,  and  to  collect  all  debts 
for  the  benefit  of  all  parties  entitled  thereto,  and  that  the 
proceeds  thereof  be  divided,  after  payment  of  all  just  debts 
of  said  partnership  and  the  costs  of  this  action,  between  the 
parties  hereto,  according  to  their  respective  rights;  and  for 
such  further  relief  as  may  be  just. 

1691.    The  same,  alleging  misappropriation  of  funds  by 
the  defendant. 

I.  [As  in  preceding  form.] 

II.  That  said  plaintiff  and  defendant  entered  upon,  and 
have  ever  since  continued  to  carry  on  the  said  copartnership 
business,  under  and  in  pursuance  of  said  agreement,  no  other 
articles  or  instrument  having  ever  been  executed  between 
them. 


Chapter  LXXIV.]  1155  [Form  1691. 

III.  That  since  the  commencement  of  said  partnership, 
the  defendant  has,  from  time  to  time,  applied  to  his  own  use, 
from  the  receipts  and  profits  of  said  business,  large  sums  of 
money,  greatly  exceeding  the  proportion  thereof  to  which  he 
was  entitled,  and  in  order  to  conceal  the  same  said  defendant, 
who  has  always  had  the  management  of  the  copartnership 
books,  has  never  balanced  said  books. 

IV.  That  on  or  about  the  ....  day  of ,  19 . .,  the 

plaintiff  discovered  that  the  defendant  was  greatly  indebted 
to  said  copartnership,  by  reason  of  his  applying  the  copart- 
nership moneys  to  his  own  use,  as  aforesaid;  that  the  plain- 
tiff then  requested  the  defendant  to  pay  all  copartnership 

moneys  that  he  received  into  the bank,  in  which  the 

copartnership  was  accustomed  to  keep  its  accounts,  and  to 
draw  therefrom  only  such  sums  as  such  copartnership  had 
occasion  for;  that  said  defendant  wholly  disregarded  said 
request,  and  continued  to  apply  the  copartnership  moneys 
received  by  him  to  his  own  use,  without  depositing  the  same 
in  said  bank,  or  any  other  bank,  to  the  credit  of  the  firm, 
and  has  also  taken  to  his  own  use  moneys  received  by  the 
clerks  of  said  firm,  and  has  by  such  means  greatly  increased 
his  debts  to  the  copartnership,  without  affording  to  the  plain- 
tiff any  adequate  means  of  ascertaining  the  true  state  of  his 
accounts. 

V.  That  the  defendant  has  received  the  sum  of 

dollars  over  and  above  his  due  proportion  of  the  copartner- 
ship profits,  and  that  he  continues  to  collect  the  copartner- 
ship debts  and  appropriate  the  moneys  to  his  own  use. 

WHEREFORE  the  plaintiff  demands  judgment:  (1)  That 
the  said  copartnership  may  be  dissolved,  and  an  account 
taken  of  all  the  said  copartnership  dealings  and  transactions 
from  the  commencement  thereof,  and  of  the  moneys  re- 
ceived and  paid  by  the  plaintiff  and  defendant  respectively 
in  relation  thereto.  (2)  That  the  property  of  the  firm,  real 
and  personal,  be  sold,  and  the  copartnership  debts  and  lia- 
bilities be  paid  off,  and  the  surplus,  if  any,  divided  between 
the  plaintiff  and  defendant,  according  to  their  respective 
interests.  (3)  That  in  the  meantime  the  defendant  may 
be  enjoined  from  collecting  or  receiving  or  in  any  manner 
interfering  or  intermeddling  with,  or  disposing  of  the  part- 
nership debts  or  moneys,  or  other  property  or  effects  of  said 
partnership.     (4)     That  a  receiver  of  the  partnership  mon- 


Form  1692.]  1156  [Chapter  LXXIV. 

eys,  property,  and  effects  may  be  appointed,  with  the  usual 
powers  and  duties.  (5)  And  for  such  other  and  further 
relief  as  may  be  just,  with  the  costs  of  this  action. 

1692.    By  administrator  of  deceased  partner,  against  the 
survivor. 

I.  [As  in  Form  1690,  substituting  decedent's  name  for  the 
words  "the  plaintiff."] 

II.  That  the  said  copartnership  business  was  entered 
upon  pursuant  to  said  agreement,  and  continued  to  be  carried 
on  under  and  pursuant  to  the  same  up  to  the  time  of  the 
death  of  the  said  [decedent]  which  occurred  on  the  ....  day  of 

,  19. .,  said  [decedent]  having  advanced  large  sums  of 

money  towards  the  capital  stock. 

III.  That  at  the  time  of  the  death  of  the  said  [decedent] 
there  was  on  hand  partnership  assets  to  the  amount  or  value 

of  about dollars,  as  follows:  a  large  amount  of  personal 

property,  consisting  of  [name  it]  of  the  estimated  value  of 
dollars;  real  estate  situated  [describe  it]  of  the  esti- 
mated value  of dollars ;  together  with  book-accounts, 

notes,  and  other  demands  of  the  estimated  value  of 

dollars;  and  the  debts  and  liabilities  of  said  firm  amounted 
to  about dollars. 

IV.  [Allege  appointment  of  executor  or  administrator  as 
in  Form  851  or  853.] 

V.  That  ever  since  the  death  of  said  [decedent]  the  said 
defendant  has  continued,  individually,  in  the  possession  of 
the  store  and  all  said  real  and  personal  property,  and  to 
m^anage  and  carry  on  said  business,  and  dispose  of  said  stock, 
and  to  collect  the  debts  and  things  in  action,  and  to  pay 
debts  and  liabilities  of  said  firm  out  of  the  avails  thereof; 
and  he  has  so  collected  large  sums,  the  amount  of  which  the 
plaintiff  does  not  know  and  cannot  ascertain. 

VI.  That  said  defendant  has  not  paid  over  to  said  plain- 
tiff, as  administrator  of  the  estate  of  said  [decedent]  any 
moneys  or  other  proceeds  of  said  copartnership  since  the 

death  of  said  [decedent]  [except dollars];  nor  has  he 

assigned,  transferred,  or  delivered  over  to  said  plaintiff 
any  of  the  assets,  securities,  or  other  property  of  said  co- 
partnership [except,  etc.,  describing  what  has  been  delivered, 
if  any]. 


Chapter  LXXIV.]  1157  [Form  1693. 

VII.  That  within  a  few  weeks  last  past,  said  defendant 
has  become  embarrassed  in  business,  and  has  stopped  pay- 
ment, and  is  unable  to  give  any  security  for  the  payment  to 
the  plaintiff,  as  the  representative  of  said  [decedent]  of  the 
value  of  the  interest  of  said  [decedent]  in  said  copartnership. 

VIII.  That  the  plaintiff  has  requested  of  said  defendant  a 
statement  and  account  of  said  copartnership  transactions, 
which  the  defendant  refused  to  give ;  and  that  he  has  offered 
defendant  to  settle  and  wind  up  the  affairs  of  said  late  co- 
partnership in  the  manner  specified  in  said  agreement,  which 
he  has  neglected  to  do. 

WHEREFORE  the  plaintiff  demands  judgment:  (1) 
That  an  account  may  be  taken  of  all  the  said  copartnership 
dealings  and  transactions,  from  the  time  of  the  commence- 
ment thereof  to  the  time  of  dissolution  by  the  death  of  said 
[decedent]  and  an  account  of  the  moneys  received  and  paid 
by  the  said  partners  respectively  in  regard  thereto;  that  the 
defendant  may  account  with  the  plaintiff  for  all  his  dealings 
with,  and  transactions  in  regard  to  the  property,  assets,  and 
effects  of  said  firm  since  its  dissolution  by  the  death  of 
said  [decedent]  and  the  property  sold  or  disposed  of  by  him, 
either  as  surviving  partner  or  otherwise,  and  of  the  moneys 
collected  and  received  and  paid  out  by  him  on  account 
thereof.  (2)  That  the  defendant  may  be  adjudged  to 
pay  the  plaintiff,  as  administrator  aforesaid,  what,  if  any- 
thing shall  upon  the  taking  of  the  said  accounts  appear  to 
be  due  the  said  plaintiff  as  such  administrator  of  said  [dece- 
dent] the  said  plaintiff,  as  administrator  aforesaid,  being 
ready  and  willing,  and  hereby  offering  to  pay  the  defendant 
what,  if  anything,  shall  appear  to  be  due  him  on  such  ac- 
counting. (3)  That  a  receiver  be  appointed,  with  the  usual 
powers  and  duties,  and  under  the  usual  directions;  and  that 
the  defendant  may  be  restrained  by  order  of  this  court  from 
disposing  of,  or  in  any  manner  interfering  with,  the  property 
and  effects  of  said  firm,  or  from  collecting  or  receiving  the 
copartnership  debts  or  other  moneys  coming  to  said  firm, 
(4)  For  such  other  or  further  relief  as  may  be  just,  with 
costs  of  this  action. 

1693.    To  dissolve  an  insolvent  partnership  when  part- 
ners cannot  agree. 

I  and  II.     [As  in  Form  1690.] 


Chapter  LXXIV.]  1158  [Form  1694. 

III.  That  said  firm  is  indebted  to  an  amount  exceeding 
dollars,  and  is  insolvent  and  unable  to  meet  its  obli- 
gations, and  that  both  the  plaintiff  and  defendant  are  also 
insolvent. 

IV.  That  a  considerable  part  of  said  firm  property  to-wit 
[name  property]  is  covered  by  chattel  mortgages  heretofore 
duly  executed  by  the  parties  to  creditors  of  said  firm  and  duly 
filed  in  the  proper  office,  which  are  no\^  due  and  payable, 
and  which  said  creditors  threaten  at  once  to  foreclose  by 
taking  possession  of  and  selling  the  said  property. 

V.  That  sundry  unsecured  creditors  of  said  firm  are  also 
threatening  and  about  to  commence  actions  against  said 
firm,  and  attach  its  property,  and  that  the  parties  are  unable 
to  agree  upon  the  method  of  conducting  the  business  of  said 
firm  or  of  winding  up  the  affairs  thereof. 

VI.  That  unless  the  said  firm  be  dissolved  and  its  pro- 
perty and  affairs  administered  by  a  receiver  appointed  by  the 
court,  its  property  will  be  sacrificed  at  forced  sales  and  great 
injury  will  thereby  result  not  only  to  the  parties,  but  also  to 
the  creditors  of  said  firm. 

WHEREFORE,  etc.  [prayer  for  judgment  as  in  previous 
forms  in  this  chapter.] 

1694.  Outline  of  complaint  for  accounting  on  a  joint  ad- 
venture when  defendant  has  received  the  pro- 
ceeds. 

I.  [Allege  the  agreement  between  the  parties,  the  contribu- 
tion of  funds  or  labor  thereto  by  each  party.] 

II.  [Allege  the  prosecution  of  the  adventure  the  profits,  if 
any,  the  property  resulting  therefrom  or  the  money  as  the  case 
may  be;  if  property,  show  that  it  came  to  the  possession  of  the 
defendant  and  is  still  in  his  possession  or  has  been  disposed  of 
by  him  and  the  proceeds  are  still  in  his  hands.] 

III.  [Allege  demand  for  an  accounting  and  refusal.] 
WHEREFORE,  etc.  [Demand  judgment  for  an  account- 
ing, and  that  the  defendant  be  adjudged  to  pay  over  to  plaintiff 
the  sums  found  due  on  such  accounting;  that  such  sums  be 
adjudged  a  lien  upon  the  real  estate^  if  the  proceeds  of  the  ad- 
venture have  gone  into  real  estate.] 


CHAPTER  LXXV 

COMPLAINTS    IN    ACTIONS    TO    SEQUESTRATE 
PROPERTY  OF  A  DOMESTIC  BUSINESS  COR- 
PORATION,   WIND    UP    ITS    AFFAIRS 
AND  ENFORCE  LIABILITIES 
OF    OFFICERS    AND 
STOCKHOLDERS 


1695.  Complaint  by  judgment  cred- 

itor to  sequestrate  prop- 
erty of  insolvent  corpora- 
tion. 

1696.  Complaint    by    creditor    of 

insolvent  corporation 
against  the  corporation 
and  its  stockholders,  to 
sequestrate  assets  and  en- 
force payment  of  stock 
subscription. 

1697.  Complaint    by    corporation 

creditor  against  the  cor- 
poration and  its  officers, 
to  sequestrate  and  enforce 
stock  subscriptions,  and 
set  aside  a  fraudulent 
assignment  for  the  benefit 
of  creditors. 

1698.  Complaint  by  stockholder  or 

creditor,  to  close  up  the 
business  and  sequestrate 
the  property  of  an  insol- 
vent state  bank. 

1699.  Supplemental  complaint  filed 

by  leave  of  court  by  an 
intervening  creditor  in  an 
action  brought  by  a  stock- 


holder to  sequestrate  the 
bank  property:  in  which 
supplemental  complaint 
directors  and  officers  are 
brought  in,  and  claims  to 
recover  corporate  property 
lost  or  squandered  by 
them  litigated. 

1700.  Amended  complaint  in  cred- 

itor's action  against  in- 
solvent bank  and  its  offi- 
cers, to  sequestrate  prop- 
erty and  enforce  statutory 
and  common  law  liabilities 
of  the  stockholders  and 
officers. 

1701.  Complaint    by    creditor    of 

insolvent  business  corpora- 
tion to  enforce  liability  of 
stockholders  for  wages  due 
employees  under  Wis- 
consin Statutes. 

1702.  Complaint    by    creditor 

against  insolvent  bank  and 
stockholders  to  enforce  ad- 
ditional liability  of  stock- 
holders under  the  banking 
law. 


In  Wisconsin  the  law  with  regard  to  sequestration  actions 
against  domestic  corporations  and  the  enforcement  of  statu- 
tory and  common-law  liabilities  of  officers,  stockholders  and 
third  persons  fraudulently  colluding  with  officers  or  stock- 
holders is  quite  well  set  Lied  by  the  provisions  of  Wis.  Stats. 


Introduction.]  1160  [Chapter  LXXV. 

1913  sees.  3216  to  3228,  and  the  various  decisions  made 
thereunder. 

Independently  of  the  statute,  a  common  law  creditor's 
action  to  reach  non-leviable  assets  of  a  domestic  business 
corporation  may  doubtless  still  be  commenced  [see  Chapter 
LXXII  of  this  work],  but  it  will  be  superseded  by  an  action 
subsequently  commenced  under  the  statute,  by  virtue  of  the 
provisions  of  sec.  3227,  supra.  Pierce  v.  IVIil.  C.  Co.,  38 
Wis.  253. 

Under  the  statutes  there  may  be  said  to  be  three  general 
forms  of  action:  (1)  Under  sees.  3216  and  3217  a  judgment 
creditor  with  execution  returned  unsatisfied,  may  maintain 
a  sequestration  action  against  any  domestic  business  cor- 
poration, and  may  join  delinquent  stockholders  and  officers, 
obtain  a  receiver  and  collect  and  distribute  the  assets  to  all 
creditors;  such  an  action  is  within  the  general  powers  of  a 
court  of  equity,  in  the  absence  of  a  statute,  but  the  statute 
recognizes  and  supplements  the  preexisting  right.  Adler 
V.  M.  P.  B.  M.  Co.,  et  al.,  13  Wis.  57.  (2)  Under  sees.  3218 
et  seq.  a  sequestration  action  may  be  commenced  against  any 
insolvent  banking  or  insurance  corporation  by  the  attorney- 
general  on  behalf  of  the  state,  or  by  any  creditor  or  stock- 
holder of  the  corporation,  and  the  creditors  need  not  have 
obtained  a  previous  judgment.  Hurlbut  v.  Marshall,  62 
Wis.  590,  22  N.  W.  852.  This  action  is  brought  for  the 
benefit  of  all  creditors,  and  is  to  reach  all  assets  of  the  cor- 
poration, all  liabilities  of  stockholders,  officers,  and  other 
persons  who  have  corporate  property  in  their  possession, 
and  apply  the  same  to  the  payment  of  debts.  The  corpora- 
tion should  be  made  a  party  in  either  of  the  cases  above 
referred  to,  unless  its  assets  have  been  wholly  exhausted  or 
it  has  been  dissolved,  in  which  case  the  fact  should  be  stated 
in  the  complaint.  Both  this  and  the  first  form  of  action 
may  be  commenced  in  simple  form  and  even  against  the 
corporation  alone,  without  joining  all  of  the  parties  against 
whom  relief  may  be  ultimatel^^  sought  or  obtained,  the  idea 
being  that  by  the  appointment  of  a  receiver  and  the  obtain- 
ing of  an  injunctional  order  the  corporate  assets  shall  be  at 
once  impounded  and  conserved;  but  they  are  both  potentially 
actions  for  the  enforcement  of  all  the  creditor's  rights  against 
the  corporation,  its  stockholders,  officers,  and  third  persons 
in  possession  of  the  corporate  property,  and  for  the  mar- 


Chapter  LXXV.]  1161  [Introduction. 

shalling  of  the  assets  and  the  payment  of  the  debts,  and  are 
exclusive  of  all  other  actions  for  these  purposes.  In  order 
to  effect  this  result  the  court  will  freely  allow  supplemental 
pleadings  to  be  served,  new  parties  to  be  brought  in,  and  will 
even  substitute  new  plaintiffs,  as  the  case  may  require. 
Gager  v.  Marsden,  101  Wis.  598;  77  N.  W.  922;  Boyd  v. 
Mut.  F.  Co.,  116  Wis.  155;  90  N.  W.  1086;  94  N.  W.  171; 
Harrigan  v.  Gilchrist,  121  Wis.  127-274;  99  N.  W.  909.  A 
personal  cause  of  action  by  one  creditor  against  a  corporate 
officer  for  deceit  cannot  be  joined.  Killen  v.  Barnes,  106 
Wis.  546;  82  N.  W.  536.  It  was  held  in  Clarke  v.  Banner, 
etc.  Co.,  50  Wis.  416;  7  N.  W.  309,  that  in  an  action  brought 
under  sec.  3216  third  persons  to  whom  corporate  property 
had  been  fraudulently  transferred  could  not  be  made  parties. 
This  ruling  was,  however,  indirectly  over-ruled  by  subsequent 
cases,  and  directly  by  the  case  of  Harrigan  v.  Gilchrist,  su- 
pra, pp.  272  et  seq.  (3)  In  addition  to  these  sequestration  or 
winding  up  actions  the  statutes  of  Wisconsin  provide  for  an 
action  in  equity  by  a  creditor  against  officers  or  stockholders 
of  an  insolvent  corporation,  to  enforce  liabilities  created  by 
law,  in  which  the  corporation  may  or  may  not  be  joined,  at 
the  election  of  the  plaintiff.  Wis.  Stats.  1913  sees.  3223- 
3224.  This  action  is  not  a  sequestration  action.  It  may 
be  brought  by  a  creditor  without  previous  judgment,  for  the 
benefit  of  all  creditors,  or  all  of  the  class  in  favor  of  which  the 
liability  exists.  Sleeper  v.  Goodwin,  67  Wis.  577;  31  N.  W. 
335.  It  is  not  necessary  in  this  cas3  that  the  assets  of  the 
corporation  be  exhausted,  but  it  must  appear  that  the  lia- 
bility of  the  stockholders  will  necessarily  have  to  be  resorted 
to  to  pay  the  corporate  debts,  and  all  the  stockholders  should 
be  made  parties.  Booth  v.  Dear,  96  Wis.  516;  71  N.  W.  816; 
Williams  v.  Melvy,  97  Wis.  561 ;  73  N.  W.  40.  If  the  corpor- 
ation is  not  made  a  party  defendant,  sufficient  reason  for  the 
omission  should  be  shown.  Booth  v.  Dear,  supra.  If  there 
be  parties  or  property  that  cannot  be  reached  in  the  first 
action  brought  an  additional  action  may  afterward  be  main- 
tained. 

In  Minnesota  the  statutes  regulating  sequestration  actions 
against  corporations  are  quite  similar  to  the  Wisconsin  pro- 
visions, and  have  received  a  substantially  similar  construc- 
tion. Minn.  Gen.  Stats.  1913  sec.  6631  et  seq.  Arthur  v. 
Willins,  44  Minn.  412;  46  N.  W.  851. 


Form  1695.]  1162  [Chapter  LXXV. 

In  North  Dakota  the  statutory  provisions  for  sequestra- 
tion actions  are  quite  similar  to  the  provisions  in  Wisconsin. 
N.  Dak.  Rev.  Codes  1905,  sees.  7369-7382. 

In  South  Dakota,  in  the  absence  of  direct  statutory  pro- 
vision, it  has  been  held  that  a  creditor's  action  at  common 
law  may  be  brought  against  the  corporation,  its  officers, 
stockholders,  and  third  persons,  to  reach  concealed  assets 
or  misappropriated  property,  but  in  case  a  receiver  has  been 
appointed  in  supplementary  proceedings  the  action  must  be 
brought  by  the  receiver.  South  Bend  T.  &  M.  Co.  v.  P.  F. 
&  M.  Ins.  Co.,  4  S.  Dak.  179;  56  N.  W.  98.  The  statute 
makes  stockholders  individually  liable  for  the  corporate 
debts  to  the  amount  unpaid  on  their  stock  to  be  recovered 
in  a  joint  or  several  action  by  a  creditor.  S.  Dak.  C.  C. 
1908,  sec.  441. 

Doubtless  the  common  law  remedy  to  sequestrate  the 
property  of  an  insolvent  corporation  and  reach  concealed  or 
fraudulently  conveyed  assets  in  the  hands  of  officers,  stock- 
holders or  their  confederates  in  an  action  in  equity  brought 
by  a  judgment  creditor  who  has  exhausted  legal  remedies, 
for  the  benefit  of  all  creditors,  still  exists  in  all  jurisdictions 
where  it  has  not  been  abolished  by  statute.  Maxwell  on 
Code  Pleading,  p.  168. 

1695.    Complaint  by  judgment  creditor  to  sequestrate 
property  of  insolvent  corporation/ 

I,  II,  III  and  IV.  [As  in  Form  1654,  remembering  that  the 
execution  must  be  issued  to  and  returned  by  the  sheriff  of  the 
county  in  which  the  defendant  corporation  has  its  principal 
office  and  this  fact  should  be  alleged.] 

V.  [Allege  corporate  existence  of  the  defendant  corporation 
as  in  Form  848  and  its  business.] 

VI.  That  said  judgment  is  still  wholly  unsatisfied  and 
that  the  defendant  is  insolvent. 

WHEREFORE  the  defendant  demands  judgment  that 
the  stock,  property,  things  in  action  and  effects  of  the  de- 
fendant, of  every  nature,  be  sequestrated  and  placed  in  the 
hands  of  a  receiver  to  be  appointed  by  this  court  as  provided 
by  law;  that  the  proceeds  of  said  property  be  distributed 

1  Wis.  Stats.  1913  sec.  3216,  3217;  Minn.  Gen.  Stats.  1913  sec.  6634. 


Chapter  LXXV.]  1163  [Form  1696. 

among  the  creditors  of  said  corporation  as  provided  by  law 
and  the  order  of  the  court,  and  for  such  further  relief  as  may 
bie  just  with  costs. 

1696.  Complaint  by  creditor  of  insolvent  corporation 
against  the  corporation  and  its  stockholders,  to 
sequestrate  assets  and  enforce  payment  of  stock 
subscription  (adapted  from  complaint  sustained 
in  Alder  v.  Milwaukee  P.  D.  Co.,  13  Wis.  57). 

I,  II,  III  and  IV.     [As  in  last  preceding  form.] 

V.  [Allege  corporate  character  and  business  of  the  defend- 
ant corporation.] 

VI.  Upon  information  and  belief,  the  plaintiff  alleges 
that  the  above  named  defendants  [name  defendants  who  are 
stockholders  and  have  not  paid  their  subscriptions]  on  or  about 
the  ....  day  of ,  19 . .,  became  subscribers  to  the  cap- 
ital stock  of  the  said  defendant  corporation,  and  stock- 
holders therein  to  the  following  amounts,  respectively 
[name  stockholders  and  the  amount  of  their  respective  subscrip- 
tions], and  the  plaintiff  further  alleges,  on  information  and 
belief,  that  the  said  last  named  defendants  have  only  paid 
a  very  small  amount,  not  exceeding  ten  per  cent,  of  the  capi- 

,tal  stock  by  them  subscribed,  respectively,  as  above  set 
forth,  and  that  the  remaining  amounts  of  capital  stock 
subscribed  by  them  still  remains  due  and  unpaid. 

VII.  That  the  said  defendant  corporation,  on  or  about 

the  ....  day  of ,  19. .,  entered  into  the  business  of 

manufacturing  and  selling  [name  the  business  of  the  corpora- 
tion] during  the  years  19. .  and  19.  .  and  up  to  the  month 
of  June,  19. .,  at  which  time  the  said  defendant  corporation 
became,  and  ever  since  has  been,  insolvent,  and  has  ceased 
to  do  business. 

VIII.  Plaintiff  further  alleges,  upon  information  and  be- 
lief, that  the  defendants  E . . . .  F . . . .  and  G . . . .  H . . . .  are 
insolvent,  and  that  there  may  be  other  defendants  who  are 
irresponsible  and  insolvent;  and  the  plaintiff  alleges  that 
there  are,  as  he  is  informed  and  believes,  other  creditors  of 
said  defendant  corporation  whose  claims  and  demands  are 
unpaid,  and  for  whose  benefit  this  action  is  prosecuted  as 
well  as  for  the  benefit  of  the  plaintiff. 


Form  1697.]  1164  [Chapter  LXXV. 

WHEREFORE  plaintiff  demands  judgment  that  an  ac- 
count may  be  taken  of  the  amounts  due  from  said  defendant 
corporation  to  all  persons  who  may  elect  to  come  in  and  prove 
their  claims  as  creditors  of  the  said  corporation;  that  an 
account  may  also  be  taken  of  the  amounts,  respectively, 
paid  by  the  said  defendants,  as  stockholders  of  said  company, 
of  the  amount  of  their  respective  subscriptions  to  stock,  and 
the  amounts  yet  unpaid  by  each  of  said  defendants  upon 
said  subscriptions;  that  it  may  be  ascertained  who,  if  any,  of 
said  defendants  are  insolvent  and  irresponsible,  and  that 
said  defendant  stockholders  be  decreed  to  pay  the  balance 
so  found  unpaid  on  their  respective  stock  subscriptions,  or 
so  much  thereof  as  may  be  sufTicient  to  pay  the  debts  of  the 
said  company,  ascertained  as  aforesaid,  besides  the  costs  of 
this  action,  taking  into  account  the  irresponsibility  and  in- 
solvency of  any  of  said  defendants;  that  a  receiver  may  be 
appointed  to  receive  the  said  several  sums  of  money  so  de- 
creed to  be  paid  by  said  several  defendants,  and  to  distribute 
the  same  among  the  said  creditors  of  said  company,  accord- 
ing to  the  order  and  direction  of  this  court,  and  that  the 
plaintiff  have  such  other  and  further  relief  in  the  premises  as 
may  be  just  and  equitable. 

1697.  Complaint  by  corporation  creditor  against  the 
corporation  and  its  officers,  to  sequestrate  as- 
sets, enforce  stock  subscription,  and  set  aside  a 
fraudulent  assignment  for  the  benefit  of  credit- 
ors (adapted  from  complaint  sustained  in  Pow- 
ers V.  Hamilton  Paper  Company,  60  Wis.  23; 
18  N.  W.  20). 

1,  II,  III  and  IV.     [As  in  last  preceding  form.] 

V.  [Add  allegation  of  corporate  character  of  the  corporation 
defendant.] 

VI.  That  said  defendant  corporation  is  largely  indebted 
to  various  persons  and  corporations,  and  is  wholly  insolvent, 
and  this  plaintiff  brings  this  action  on  behalf  of  all  such  credi- 
tors as  shall  come  in  under  the  same  and  exhibit  their  claims 
and  become  parties  to  this  action. 

VII.  That,  as  the  plaintiff  is  informed  and  believes,  the 
said  defendants  E .  .  . .  F . . .  .  and  G . .  .  .  H .  .  . .  and  J . .  . . 
K....  were  and  still  are  stockholders  and  directors  in  the 


Chapter  LXXV.]  1165  [Form  1697. 

said  corporation  defendant,  and  that  they  and  each  of  them 
became  such  by  subscribing  to  its  capital  stock,  but  did  not 
at  the  time  of  said  subscription,  nor  have  they  since,  paid 
up  the  full  par  or  nominal  value  thereof,  but  that  a  large 
amount  is  due  from  each  of  them,  respectively,  upon  their 
respective  stock  subscriptions  to  the  said  corporation  de- 
fendant, and  said  plaintiff  alleges  that  whatever  sums  are 
due  from  said  defendants  respectively  upon  said  subscrip- 
tions is  in  law  an  asset  of  the  said  corporation  defendant,  and 
ought  in  equity  to  be  marshalled  and  applied  in  satisfaction 
of  the  corporate  debts  aforesaid  of  the  said  defendant,  but 
that  the  amount  which  each  of  said  defendants  subscribed, 
and  the  amount  paid  on  said  subscriptions,  as  well  as  the 
amount  remaining  due  thereon,  said  plaintiff  cannot  ascer- 
tain and  is  unable  to  state,  but  alleges  that  the  same  is  a 
large  amount. 

VIII.  The  plaintiff  further  alleges,  upon  information  and 
belief,  that  the  said  defendants  E....  F....,  G....  H.... 
and  J .  . .  .  K .  . . .  were  and  are  the  only  stockholders  and 
directors  of  said  corporation,  and  that  the  said  defendants, 

on  or  about  the  ....  day  of ,  19.  .,  called  and  held  a 

meeting  of  the  stockholders  of  said  corporation,  at  which 
by  resolution  introduced  and  passed  they  determined  that 
the  said  corporation  was  insolvent,  and  further  determined 
that  an  assignment  for  the  benefit  of  the  creditors  of  said 
corporation  of  all  its  property  and  effects  be  made,  with 
preferences,  and  that  pursuant  to  said  resolution,  and  on  the 

....  day  of ,  19 . . ,  the  said  E . . . .  F . . .  . ,  as  president 

and  secretary  of  said  corporation,  executed  and  delivered  a 
certain  assignment  for  the  benefit  of  creditors,  to  one  L . . . . 
M .  . . .  whereby  the  said  corporation  defendant  purported 
to  grant,  bargain,  sell  and  transfer  to  the  said  L . . , .  M . .  .  . 
all  and  singular  its  goods  and  property  of  every  description, 
in  trust  for  the  benefit  of  the  creditors  of  said  corporation, 
which  said  assignment  was  in  form  executed  in  pursuance 

of  the  laws   of  the   state   of    governing  voluntary 

assignments  for  the  benefit  of  creditors,  and  the  said  L. .  . . 
M .  . . .  accepted  the  said  assignment  and  entered  upon  the 
duties  of  his  trust,  and  gave  bond  in  due  form,  as  required 
by  the  laws  of  said  state. 

IX.  That  the  said  assignment  so  made  by  said  corpora- 
tion was  in  fact  made  with  the  intention  to  hinder,  delay  and 


Form  1608.]  1166  [Chapter  LXXV. 

defraud  this  plaintifT  and  the  other  creditors  of  said  cor- 
poration defendant,  and  for  the  purpose  of  securing  to  the 
directors  of  said  corporation  illegal  and  inequitable  prefer- 
ences. That,  as  this  plaintifT  is  informed  and  believes, 
among  the  debts  listed  in  the  schedule  of  debts  attached  to 

the  said  assignment,  the  debt  of  one  Y. . . .  Z for 

dollars  was  not  in  fact  a  debt  of  the  said  corporation,  but  a 

debt  owing  by  the  said  E F and  G . . .  .   H 

individually,  and  that  by  the  said  assignment  so  made  the 

said  defendants  E.,..   F....   and  G H....  procured 

for  themselves,  to  the  detriment  of  this  plaintiff  and  of  the 
other  creditors  of  the  said  corporation  defendant  payment  of 
their  said  individual  debt,  or  a  part  thereof,  out  of  the  assets 
of  the  said  corporation,  and  that  by  reason  of  the  said  un- 
lawful preference  and  paymeut  so  provided  for  the  said 
assignment  became  and  is  fraudulent  and  void  as  to  this 
plaintiff. 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
defendant  corporation  be  declared  insolvent;  that  its  stock, 
property  and  things  in  action  be  sequestrated  by  the  court, 
and  that  a  receiver  of  the  same  be  appointed,  with  the  usual 
powers  of  receivers  in  such  cases;  that  the  amounts  of  the 
subscriptions  to  the  capital  stock  of  the  said  corporation 

defendant  still   unpaid   by  the  said  E....    F G.... 

H . . . .  and  J . . . .  K . . . .  be  ascertained  and  determined,  and 
that  the  said  last  named  defendants  be  adjudged  to  pay  to 
the  said  receiver  the  amounts  so  found  due  and  owing  from 
them,  respectively,  for  such  unpaid  subscriptions;  that  the 
said  L. . . .  M . , . .  be  directed  to  convey  to  the  said  receiver 
all  property  by  him  held  as  assignee  under  the  said  assign- 
ment hereinbefore  set  forth,  and  that  the  court  make  a  just 
and  fair  distribution  of  the  property  of  the  said  corpora- 
tion defendant  among  its  creditors,  as  by  law  provided;  and 
that  the  plintiff  have  such  other  and  further  relief  as  may 
be  just  and  equitable. 

1698.  Complaint  by  stockholder  or  creditor,  to  close  up 
the  business  and  sequestrate  the  property  of  an 
insolvent  state  bank  (adapted  from  first  com- 
plaint in  Gager  v.  Marsden,  101  Wis.  598;  77  N. 
W.  922). 
I.     That  the  above  named  defendant  is  a  corporation  duly 


Chapter  LXXV.]  1167  [Form  1698. 

organized  under  and  pursuant  to  the  laws  of  the  state  of 
Wisconsin,  in  the  month  of  April,  19.  .,  for  the  purpose  of 

carrying  on  a  banking  business,  in  the  city  of in  the 

county  of and  state  of ;  that  the  authorized 

capital  of  said  bank  was  the  sum  of dollars;  that  all  of 

the  capital  stock  of  said  bank  was  duly  subscribed;  that 
immediately  after  the  organization  of  said  defendant,   as 

such  bank,  it  commenced  business  in  the  city  of in 

the  county  of   and  state  of   and  from  that 

time  to  the  ....  day  of ,  19 . .,  carried  on  the  business 

of  banking  in   said   city. 

II.  This  plaintiff  further  shows  that  he  is  a  stockholder  in 
said  bank  and  a  creditor  thereof;  that  he  is  the  owner  of  .... 
shares  of  the  capital  stock  of  said  bank,  of  the  nominal 

value  of dollars  per  share,  and  that  the  said  bank  is 

indebted  to  him  in  the  sum  of dollars. 

III.  This  plaintiff  further  shows  that  in  carrying  on  its 
said  business  the  said  defendant  has  become  and  now  is 
wholly  insolvent  and  unable  to  pay  its  debts,  and  this  plain- 
tiff states,  upon  information  and  belief,  that  the  liabilities 

of  said  bank  are  about dollars,  and  that  its  assets 

and  property  amount  to  the  sum  of  about dollars; 

that  the  said  defendant  is  wholly  unable  to  pay  its  said 
indebtedness  and  is  wholly  insolvent;  that  this  action  is 
commenced  by  this  plaintiff  for  the  purpose  of  closing  up 
the  business  of  said  bank  and  causing  a  just  and  fair  distri- 
bution of  the  property  of  the  said  bank  to  be  made  among  its 
creditors,  and  that  the  receiver  heretofore  appointed  in  this 
action  has  entered  upon  the  discharge  of  his  duties  and  has 
taken  possession  of  the  assets  and  property  of  said  bank. 

WHEREFORE  this  plaintiff  prays  the  judgment  of  this 
court,  adjudging  and  declaring  the  corporate  rights,  privi- 
leges and  franchises  of  the  said  defendant  forfeited;  that  the 
business  of  said  defendant  be  closed  up,  under  the  direction 
of  this  court;  that  the  receiver  heretofore  appointed  by  this 
court  be  authorized  and  directed  to  collect  the  assets  of  said 
bank  and  convert  the  same  into  money,  and  hold  the  same 
subject  to  the  order  of  this  court;  that  the  said  defendant  and 


Form  1698.]  1168  [Chapter  LXXV. 

all  persons  having  any  property  or  assets  of  the  said  defend- 
ant in  their  possession  deliver  the  same  to  the  said  receiver; 
that  the  said  defendant  make,  execute  and  deliver  to  the 
said  receiver  good  and  sufficient  deeds  of  conveyance,  of  all 
real  estate  owned  by  the  said  defendant,  and  good  and  suffi- 
cient assignments  and  conveyances  of  any  and  all  right, 
title  and  interest  in  or  to  any  real  estate  belonging  to  the 
said  defendant;  that  said  receiver  be  also  authorized  and 
directed  to  collect  all  claims  and  demands  of  every  kind, 
due  or  owing  to  the  said  bank  from  any  and  all  persons  and 
corporations,  and  hold  and  retain  the  same,  subject  to  the 
order  of  this  court;  that  a  fair  and  just  distribution  of  the 
property  of  the  said  defendant,  or  of  the  proceeds  thereof,  be 
made  among  the  creditors  of  the  said  defsndant,  in  the  man- 
ner provided  by  law;  that  each  and  every  of  the  creditors  of 
the  said  defendant  be  required  to  exhibit  to  this  court,  and 
file  in  the  office  of  the  clerk  of  this  court,  each  and  every  of 
their  claims  and  demands  against  the  said  defendant,  duly 
verified,  and  become  parties  to  this  action,  in  the  manner 
required  by  law;  that  in  default  thereof,  they  and  each  of 
them  so  in  default,  be  wholly  precluded  from  all  benefits  of 
the  judgment  which  shall  be  made  and  entered  in  this  ac- 
tion, and  from  the  distribution  which  shall  be  made  under 
such  judgment;  that  the  creditors  of  the  said  defendant,  and 
each  and  every  of  them,  be  restrained  and  enjoined,  by  the 
order  of  this  court,  from  exercising  any  of  the  corporate 
rights,  privileges  or  franchises  of  the  said  defendant,  and  from 
collecting  or  receiving  any  debts  or  demands,  or  from  pay- 
ing out,  or  in  any  way  transferring  or  delivering  to  any  person, 
any  of  the  moneys,  property  or  effects  of  the  said  defendant; 
that  the  creditors  of  the  said  defendant,  and  each  of  them, 
be  restrained  and  enjoined,  by  the  order  of  this  court,  from 
commencing  any  action  or  proceedings  against  the  said 
defendant  to  collect  their  said  claims  against  the  said  de- 
fendant without  the  order  of  this  court,  and  that  the  said 
plaintiff  have  such  other  or  further  relief  in  the  premises  as 
shall  be  just  and  equitable. 


Chapter  LXXV.]  1169  [Form  1699. 

1699.  Supplemental  complaint  filed  by  leave  of  court  by 
an  intervening  creditor  in  an  action  brought  by 
a  stockholder  to  sequestrate  the  bank  property; 
in  which  supplemental  complaint  directors  and 
officers  are  brought  in,  and  claims  to  recover 
corporate  property  lost  or  squandered  by  them 
litigated  (adapted  from  second  complaint  in 
Gager  v.  Marsden,  101  Wis.  598;  77  N.  W.  922). 

And  now  come  the  above  named  plaintiffs,  on  their  own 
behalf,  and  on  behalf  of  all  other  persons  who  have  since  the 
commencement  of  this  action  been  made  parties  plaintiff 
thereto,  and  on  behalf  of  all  other  creditors  of  said  bank  who 
may  choose  to  be  made  parties  hereto,  and  upon  leave  duly 
granted,  make  and  file  this  amended  complaint,  and  hereby 
allege  and  show: 

I.  That  the  said  defendant,  the  Bank  of was  on  or 

about  the  ....  day  of ,  19. .,  duly  incorporated  under 

the  laws  of  the  state  of as  a  banking  corporation,  and 

existed  and  did  business  as  such  bank  at in  the  coufity 

of and  state  of from  the  time  of  its  organiza- 
tion until  it  closed  its  doors  and  ceased  to  do  business,  as 
hereinafter  alleged. 

II.  Plaintiffs  further  allege  that  said  defendant.  Bank  of 

is,  and  was  at  the  time  of  the  commencement  of  this 

action,  indebted  to  said  plaintiff  A. . . .  B .  . . .  in  the  sum  of 

dollars;  to  the  said  plaintiff  C . . . .  D , . . .  in  the  sum 

of dollars,  and  to  the  said  plaintiff  E. . . .  F.  . . .  in 

the  sum  of dollars;  and  to  the  said  plaintiffs  G.  . . . 

H. . . .  and  J. . . .  K. . . .,  as  copartners  under  the  firm  name 

of  H. . . .  &  K. .  . .  in  the  sum  of dollars;  and  that  the 

indebtedness  due  to  each  of  said  several  persons  and  co- 
partnership above  named  is  for  a  balance  of  various  sums 
deposited,  in  the  usual  course  of  business,  by  said  several 
persons  and  copartnership,  respectively,  in  said  defendant, 

Bank  of ;  and  that  the  indebtedness  to  each  of  said 

several  persons  and  copartnership  was  due  and  owing  to  him, 
or  them,  respectively,  at  the  time  of  the  commencement  of 
this  action,  and  has  ever  since  been,  and  now  is,  so  due  and 

owing,  and  that  prior  to  the  ....  day  of ,  19.  .,  no 

demand  had  ever  been  made  for  any  of  said  balances. 

74 


Form  1699.]  1170  [Chapler  LXXV. 

III.  That  said  defendant,  the  Bank  of is  also  in- 
debted to  a  large  number  of  persons  other  than  these  plain- 
tiffs, who  have  already  been  made  parties  hereto,  but  whose 
names  as  parties  to  this  action  have  been  omitted  herefrom, 
for  the  reason  that  they  are  very  numerous,  and  that  it  is 
impracticable  to  name  them  as  party  plaintiffs  herein;  and 

that  said  defendant,  the  Bank  of is  also  indebted  to 

a  large  number  of  persons  other  than  those  who  have  been 
made  parties  hereto,  and  that  this  amended  complaint  is 
made  on  behalf  of  all  other  creditors  of  said  defendant,  the 

Bank  of w^ho  may  choose  to  come  in  and  be  made 

parties  hereto,  or  become  interested  herein. 

IV.  Plaintiffs  further  allege,  upon  information  and  belief 

that  upon  the  ....  day  of ,  19 . .,  said  defendant,  the 

Bank  of was  insolvent,  and  had  been  insolvent  prior 

thereto,  and  has  ever  since  been  insolvent,  as  hereinafter 
alleged.  That  on  said  ....  day  of ,  19.  .,  said  defend- 
ant, the  Bank  of closed  its  doors,  and  ceased  doing 

business,  and  that  after  said  bank  so  ceased  doing  business, 
and  on  the  same  day,  this  action  was  commenced  in  the  name 
of  L . . . .  M . . . . ,  a  creditor  as  well  as  a  stockholder  of  said 

bank,  as  plaintiff,  against  said  defendant,  the  Bank  of , 

under  the  provisions  of  sections  3218  and  3219  of  the  stat- 
utes of  said  state,  for  the  purpose  of  closing  up  the  business 

of  such  bank,  and  that  upon  the  same  day  0 P . . . .,  Esq., 

of  the  city  of was  by  an  order  of  said court  of 

county,  duly  appointed  receiver  of  said  defendant 

Bank  of   ,  and  that  upon  the  same  da^'  said  0. . .  . 

P. . . .  duly  filed  his  bond  as  such  receiver,  which  bond  was 

duly  approved  by  said court,  and  entered  upon  the 

discharge  of  his  duties  as  such  receiver,  and  has  ever  since 
acted,  and  is  now  acting,  in  that  capacity.     That  upon  the 

same  day,  to-wit,  the  said    day  of   ,   19..,  an 

order  was  made  by  said court  in  said  action,  enjoining 

and  restraining  said   defendant,   the  Bank  of    ,  its 

officers  and  agents,  and  each  and  every  of  them,  from  paying 
any  indebtedness  due  from  said  defendant,  the  Bank  of 

to  any  person,  or  creditor,  or  from  transferring  or 

delivering  to  any  person,  or  creditor,  of  said  bank,  any  of 
the  moneys,  property,  or  effects  of  said  bank,  in  liquidation 
or  payment  of  any  claims  due  from  said  bank  to  any  such 


Chapter  LXXV.]  1171  [Form  1699. 

person,  or  creditor,  or  otherwise,  and  that  said  order  has 
since  remained  and  now  is  in  full  force  and  effect. 

V.  That  after  the  making  of  said  last  named  order,  and 

on  the  ....  day  of ,  19. .,  an  order  was  duly  made  by 

said court  in  said  action  directing  the  publication  of 

a  notice  requiring  all  creditors  of  said  defendant,  the  Bank 

of to  exhibit  their  claims  and  become  parties  to  said 

action,  and  that  the  notice  directed  in  said  order  was  duly 
published,  and  that  in  pursuance  thereof  these  plaintiffs, 
and  other  persons  similarly  situated,  duly  exhibited  their 
claims,  and  became  parties  plaintiff  to  said  action,  and  that 

thereafter,  and  on  the  ....  day  of ,  19 . . ,  an  order  was 

duly  made  by  said  court  declaring  these  plaintiffs,  and  such 
other  persons,  parties  plaintiff  to  said  action,  and  making 
said  L. . . .  M, . . .,  because  of  his  adverse  interest  in  said 
action  as  a  stockholder  and  director  of  said  defendant  Bank 

of    ,   a  defendant,   instead   of  plaintiff,   herein,   and 

authorizing  and  permitting  these  plain^tiffs,   and  all  other 

creditors  of  said  defendant,  the  Bank  of ,  who  may 

choose  to  join  with  them,  to  amend  the  original  complaint 

herein,  by  joining  with  said  defendant  Bank  of the 

other  defendants  above  named,  and  by  setting  forth  the  facts 
herein  alleged,  and  that  this  amended  complaint  is  made 
and  filed  by  virtue  of  the  leave  so  granted. 

VI.  Plaintiffs  further  allege,  upon  information  and  be- 
lief, that  at  the  time  the  said  defendant  Bank  of   

ceased  doing  business  as  aforesaid,  it  was  possessed  of  certain 
assets,  the  amount  of  which  these  plaintiffs  are  unable  to 
state;  but  plaintiffs  allege,  upon  information  and  belief,  that 

the  liabilities  of  said   defendant,   the  Bank  of    at 

that  time,  and  for  a  long  time  prior  thereto,  was  largely  in 
excess,  not  only  of  the  amount  of  such  assets,  but  in  addition 
thereto,  of  the  sum  of  the  amounts  unpaid  on  its  capital 
stock,  the  statutory  liability  of  its  stockholders,  and  the 
aggregate  dividends  paid  to  them,  as  hereinafter  alleged. 

VII.  Plaintiffs  further  allege,  upon  information  and  be- 
lief, that  at  the  time  said  defendant,  the  Bank  of 

was  organized  and  commenced  business,  as  aforesaid,  the 

capital  stock  of  the  said  bank  was  the  sum  of dollars, 

divided  into  ....  shares  of  the  par  value  of dollars 

each,  and  that  all  of  said  stock  was  subscribed  for,  and  issued 


Form  1699.]  1172  [Chapter  LXXV. 

to,  the  following  named  persons,  who  respectively  subscribed 
for,  received,  and  became  the  owners  of  the  number  of  shares 
of  stock  set  opposite  their  respective  names  [give  names  of 
subscribers,  and  number  of  shares  of  stock  subscribed  for  by 
each].  That  the  said  several  persons  to  whom  said  stock  was 
so  issued  [excepting  said  X. . . .  Y. . . .]  severally  paid  for 
said  stock  so  subscribed  for  and  issued  to  them  respectively, 
....  per  cent  of  the  par  value  thereof,  and  no  more  [and  that 
the  said  X ....  Y ... .  never  paid  for  any  portion  of  the  stock 

so  issued  to  him].     [That  on  or  about  the  ....  day  of , 

19. .,  the  said  Q. . .  .  R.  . .  .  transferred  to  the  said  S. . . . 
T . . . .  the  ....  shares  of  stock  theretofore  owned  by  the 
saidQ....  R....] 

IX.  That  the  stock  of  said  defendant,  the  Bank  of 

continued  unchanged  in  ownership  and  amount  until  on  or 

about  the  ....  day  of ,  19. .,  at  which  time,  at  an 

annual  meeting  of  the  stockholders  of  said  defendant  Bank 

of the  capital  stock  of  said  bank  was  increased  from 

dollars  to dollars,  and  such  increased  stock 

was  divided  into    ....   shares  of  the  par  value  of   

dollars  each,  and  that  on  or  about  said  last  named  date 
there  were  issued  to  the  several  persons  then  holding  the 
original  stock  in  said  bank  certificates  of  stock  equal  in 
num.ber  of  shares  and  amount  to  the  certificates  of  original 
stock  held  by  said  several  persons  at  said  time  respectively, 
and  that  following  such  increase  in  the  capital  stock  of  said 
bank,  the  ownership  of  the  entire  capital  stock  of  said  bank 
was  as  follows,  to-wit  [give  names  of  stockholders  and  the 
number  of  shares  held  bij  each].  That  none  of  the  persons 
to  whom  were  issued  said  ....  shares  of  increased  stock  ever 
paid  for  any  portion  of  the  same. 

X.  That  on  or  about  the  ....  day  of ,  19. .,  the 

said  U .  .  .  .  V .  .  .  .  assigned  to  the  said  S ....  T ... .  the  .... 
shares  of  stock  then  held  by  the  said  U . . . .  V .  . . .  [allege 
other  transfers  of  stock,  if  any].  That  the  said  transfers  were 
entered  upon  the  books  of  said  bank  at  or  about  the  time 
thereof.  That  no  other  changes  occurred  in  the  ownership 
of  said  stock,  except  that  upon  the  death  of  W. . . .  Z. .  .  . 
above  named,  which  occurred  on  or  about  the  ....  day  of 

,  19. .,  the  ....  shares  then  held  by  him  were  a  part 

of  his  estate,  and  thereafter  and  on  or  about  the  ....  day  of 
19.  .,  by  proceedings  had  to  administer  and  divide 


Chapter  LXXV.]  1173  [Form  1699. 

the  estate  of  the  said  W....   Z ,  deceased,  said    .... 

shares  of  stock  were  transferred  to  the  said  I. . .  .  N 

and  the  estate  of  the  said  W . . . .  Z . . . .  was  duly  settled, 
and  that  the  said  I . . . .  N . . . .  has  ever  since  remained  the 
owner  thereof,  and  his  ownership  thereof  since  said  last 
named  date  has  duly  appeared  on  the  books  of  said  bank;  and 
except  that  [allege  other  changes  in  ownership  by  descent  or 
devise,  if  any]    and  except  that  in  or  about  the  year  19. . 

there  was  issued  by  said  defendant  the  Bank  of ,  .... 

shares  of  the  stock  thereof  in  addition  to  all  of  the  shares 
hereinbefore  mentioned,  to  the  said  defendant  S. . . .  T. . . ., 
and  that  no  part  of  the  said  ....  shares  so  issued  were  paid 
for,  and  that  thereafter,  but  at  what  date  these  plaintiffs  are 
unable  to  state,  the  said  S. . . .  T.  . . .  assigned  and  trans- 
ferred to  the  said  defendant  C. . . .  N. . . .  Bank  ....  shares 

of  said  stock  of  the  said  defendant  Bank  of ,  and  that 

the  transfer  last  mentioned  was  entered  on  the  books  of  said 

Bank  of ,  and  that  the  said  C . . . .  N .  .  .  .  Bank  has 

ever  since  held  and  owned  the  shares  of  stock  so  transferred 
to  it. 

XI.  Plaintiffs  further  allege,  upon  information  and  belief, 
that  in  pursuance  of  law,  and  of  the  by-laws  of  said  defend- 
ant, the  Bank  of there  was  duly  elected  from  year  to 

year,  a  board  of  directors,  to  administer  the  affairs  of  said 
bank.  That  at  the  annual  meeting  of  the  stockholders  of  said 

bank,  held  on  or  about  the  ....  day  of ,  19.  .,  there 

were  duly  elected  as  directors  of  said  bank  the  said  [naming 
the  elected],  and  that  said  persons  were  from  year  to  year  duly 
re-elected  and  continued  to  act  as  such  directors  until  the 
annual  meeting  of  the  stockholders  of  said  bank  held  in 

,  19. .,  at  which  time  W. . . .  Z. . . .  was  elected  a 

director  of  said  bank  in  the  place  of  the  said  Q. . .  .  R.  .  .  ., 
the  other  members  of  said  board  of  directors  being  re-elected, 
and  that  each  year  thereafter,  down  to  and  including  the 
year  19..,  the  same  persons  were  re-elected  and  acted  as 
directors  of  said  bank.  That  in  the  fall  of  the  year  19. . 
[allege  other  changes  in  the  board  of  directors,  if  any,  whether 
by  death  or  otherwise]  and  that  thereafter  all  of  said  board 
acted  as  the  board  of  directors  of  said  bank  down  to  the  time 
it  closed  its  doors,  and  the  receiver  was  appointed  therefor, 
as  hereinbefore  alleged. 


Form  1699.]  1174  [Chapter  LXXV. 

XII.  Plaintiffs  further  allege,  upon  information  and  be- 
lief, that  from  the  time  of  the  organization  of  said  bank  down 

to  the day  of ,  19.  .,  the  said  Q R ,U 

V. . . .  and  X. . . .  Y. . . .  were  from  year  to  year  elected 
president,  vice-president,  and  cashier  of  said  bank,  respect- 
ively, and  respectively  acted  in  such  capacities.  That  at 
the  annual  meeting  of  the  stockholders  of  said  bank  held  on 

said day  of ,  19..,  Q....  R. . . .,  X. . . .  Y. . . . 

and  W. . . .  Z.  . . .  were  elected  president,  vice-president,  and 
cashier  of  said  bank,  respectively,  and  continued  to  act  in 
such  capacities,  respectively,  down  io[allege  additional  changes 
in  the  officers  of  the  bank,  whether  caused  by  death,  resignation, 
or  otherwise]  and  that  thereafter  and  down  to  the  time  when 
said  bank  closed  its  doors,  and  a  receiver  thereof  was  ap- 
pointed, as  hereinbefore  alleged,  the  said  Q . . . .  R . . . .  and 
W . . . .  Z . . . .  continued  to  act  as  president  and  cashier  of 
said   bank,   respectively. 

XIII.  The  plaintiffs  further  allege,  upon  information  and 
belief,  that  on  or  about  the  1st  days  of  May  and  November, 
for  and  during  the  years  19..,  19..  and  19..,  and  on  or 
about  the  1st  day  of  November  in  the  years  19. .,  19. .  and 
19 . .  the  board  of  directors  of  said  bank,  as  the  same  was 
constituted  at  said  several  times,  voted,  declared  and  paid 
a  semi-annual  dividend  of  ....  per  cent  on  said  ....  thou- 
sand dollars  of  the  capital  stock  of  said  bank,  and  that  each 
of  the  persons  who  were  directors  of  said  bank  at  the  several 
times  when  said  dividends  were  declared,  voted  to  declare 
and  pay  the  same,  and  that  the  dividends  of  19..,  19.., 
19.  .,  19. .,  19. .  and  19. .  were  directed  to  be  declared  and 
paid  by  the  stockholders  of  said  bank,  at  meetings  thereof 
duly  assembled,  and  that  not  only  such  of  the  stockholders 
of  said  bank  as  were  directors  thereof  at  said  several  times 
voted  to  declare  and  pay  said  dividends,  but  that  said  stock- 
holder defendant  A . . . .  X .... ,  and  others  of  said  stockhold- 
ers at  said  several  times  whom  plaintiffs  cannot  now  state, 
voted  that  said  dividends,  or  some  of  them,  be  declared  and 
paid.  That  said  several  dividends,  so  declared  and  voted, 
were  paid  to  the  different  stockholders  of  said  defendant 

Bank  of ,  including  said  directors  thereof,  according 

to  their  respective  shares,  and  that  they  were  received  by 
them  respectively  at  or  about  the  time  at  which  said  divi- 
dends were  respectively  declared  [excepting  that  said  divi- 


Chapter  LXXV.]  1175  [Form  1699. 

dent  of  the  1st  day  of  November,  19. .,  was  not  paid  antil 
on  or  about  January  1,  19. .]  That  at  the  time  when  said 
several  dividends  were  declared  and  paid,  as  aforesaid,  only 

per  cent  of  the  original   dollars  of  the  capital 

stock  of  said  bank,  and  no  part  of  the  increased    

dollars  of  the  capital  stock  thereof,  had  been  paid  in,  and 
that  said  bank  was  insolvent,  and  known  to  be  so  by  said 
several  directors  and  stockholders  who  voted  to  declare  and 
pay  said  dividends,  and  that  to  the  knowledge  of  said  direc- 
tors and  stockholders  who  so  voted  said  dividends,  there  were 

no  profits  earned  by  said  defendant,  the  Bank  of   

properly  applicable  to  the  payment  of  said  dividends,  and 
that,  to  the  knowledge  of  said  several  directors  and  stock- 
holders, the  payment  thereof  impaired  and  diminished  the 
capital  of  said  defendant  Bank  of ,  and  that  no  por- 
tion of  the  net  earnings  or  income  of  said  bank  had,  prior  to 
the  declaring  or  payment  of  any  of  said  dividends,  been 
invested  in  additions  to  the  property  of  the  said  bank,  and 
the  property  thereof  had  in  no  manner  been  increased  in 
value,  and  that  at  the  time  each  of  said  several  dividends 
were  so  declared  and  paid  as  aforesaid,  a  large  portion  of 

the  identical  debts  which  said  defendant  Bank  of   

owed  at  the  time  of  the  commencement  of  this  action,  and 
which  it  still  owes  to  its  creditors,  existed,  and  was  then 
due  and  owing  from  said  bank  to  the  same  creditors. 

XIV.     Plaintiffs   further   allege,    upon   information    and 

belief,  that  said  defendant,  the  Bank  of had  become 

and  was  insolvent  as  early  as  the  ....  day  of ,  19. ., 

and  so  continued  to  be  wholly  insolvent  until  it  closed  its 

doors  and  ceased  doing  business,  on  the  ....  day  of , 

19..,  as  aforesaid,  and  that  such  insolvency  of  said  bank 
was  well  known  to  said  several  persons  who  had  acted  as 

ofTicers  and  directors  thereof  since  said  ....  day  of , 

19..,  as  aforesaid.  That  it  was  the  duty  of  said  several 
persons  who  so  acted  as  officers  and  directors  of  said  bank  as 
aforesaid,  at  all  times  they  were  acting  as  such,  to  examine 
into  the  affairs  and  conditions  of  said  bank,  and  to  see  that 
said  bank  was  managed  carefully  and  prudently,  and  that 
its  funds  were  not  lost,  wasted,  stolen  or  squandered,  or 
loaned  upon  worthless  or  insufficient  security.  That  said 
several  persons  who  had  so  acted  as  officers  and  directors  of 
said  bank,  since  said  ....  day  of ,  19..,  as  herein- 


Form  1699.]  117G  [Chapter  LXXV. 

before  set  forth,  and  each  of  them,  have  grossly  neglected 
to  perform  their  oflTicial  duties  as  such  officers  and  directors. 
That  by  section  ....  of  article  ....  of  the  by-laws  of  said 
bank  it  was  provided  that  the  board  of  directors  thereof 
should  require  adequate  security  from  the  officers  and  agents 
thereof  for  the  faithful  performance  of  the  trusts  and  duties 
reposed  in  and  upon  them.  That  notwithstanding  said 
by-law,  and  notwithstanding  their  duty  as  such  officers  and 
directors,  said  several  persons  who  had  so  acted  as  such, 
failed  and  neglected  to  obtain,  or  take,  from  any  of  the 
persons  who  had  acted  as  president,  vice-president,  or  cash- 
ier, or  otherwise  as  an  officer  or  agent  of  said  bank,  any  bond, 
or  undertaking,  or  security  of  any  kind,  for  the  faithful  per- 
formance by  said  several  officers  or  agents  of  said  bank  of 
their  trusts  and  duties  as  such.  That  said  officers  and 
directors  have  negligently  permitted  various  persons  and 
corporations,  who  were  insolvent  and  irresponsible,  to  over- 
draw their  accounts  to  large  amounts,  without  security,  and 
have  negligently  permitted  the  money  of  said  bank  to  be 
loaned  to  irresponsible  persons  and  corporations,  without 
adequate  security,  whereby  said  money  was  lost.  That  they 
have  negligently  and  carelessly  loaned  the  money  and  assets 
of  said  bank  running  for  an  unreasonable  length  of  time,  and 
at  a  rate  of  interest  largely  below  the  prevailing  rate  of 
interest,  and  have  negligently  and  carelessly  permitted 
large  amounts  of  such  paper  to  run  until  the  same  was  long 
past  due,  and  have  negligently  and  carelessly  om.itted  to 
take  proper  steps  for  the  collection  or  securing  of  the  same, 
and  have  allowed  such  securities  to  become  wholly  worthless, 
and  the  moneys  loaned  thereon  wholly  lost.  That  Ihey 
employed  a  cashier  who  was  dishonest,  unfaithful  and  in- 
competent, as  they  had  reason  to  know  and  did  know,  and 
who  wasted,  embezzled  and  stole  large  amounts  of  the  funds 
of  said  bank.  That  they  negligently  and  carelessly  per- 
mitted such  cashier  to  pay  exorbitant  rates  of  interest  upon 
deposits,  and  upon  certificates  of  deposit  for  funds  and 
moneys  deposited  in  said  bank.  That  they  negligently 
permitted  such  cashier,  and  other  employees  of  said  bank, 
to  make  false  entries  upon  the  books  of  said  bank,  particu- 
larly by  making  it  appear  on  said  books,  and  from  such 
entries,  that  certificates  of  deposit  issued  for  and  on  ac- 
count of  moneys  deposited  in  said  bank  had  been  paid,  when 


Chapter  LXXV.]  1177  [Form  1699. 

in  truth  and  in  fact  they  had  not  been  paid,  thereby  deceiv- 
ing the  bank  examiner  of  the  state,  and  inducing  him  to 
make  reports  of  the  condition  of  said  bank,  which  were  mis- 
leading and  deceiving,  and  thereby  inducing  the  depositing 
of  money  in  said  bank  upon  the  faith  of  such  reports,  by 
many  persons,  including  some  of  the  present  creditors  of 
said  bank,  and  that  by  reason  thereof  the  liabilities  of  said 
bank  were  greatly  swelled,  to  the  injury  of  the  present 
creditors  and  depositors  of  said  bank.  That  they  negligently 
and  knowingly  permitted  the  president  and  cashier  of  said 
bank  to  make  and  transmit  on  the  first  Monday  of  January 
and  July,  in  each  year,  to  the  state  treasurer,  false  and 
fraudulent  reports  relative  to  the  condition  of  said  bank, 
and  to  file  copies  thereof  in  the  office  of  the  register  of  deeds 

of  said county,  on  the  first  Monday  of  January  and 

July,  in  each  year,  wherein  the  assets  of  said  bank  were 
stated  to  be  largely  in  excess  of  the  real  assets  thereof,  and 
the  debts  and  liabilities  thereof  were  stated  to  be  largely 
less  than  the  actual  debts  and  liabilities  thereof,  at  the  time 
when  said  reports  were,  from  time  to  time,  so  made  and 
filed,  and  that  by  reason  of  the  making  and  filing  of  said 
false,  misleading  and  fraudulent  reports,  large  sums  of  money 
were  deposited  in  said  bank,  and  extensive  credit  given  to 
said  bank  by  many  persons,  including  some  of  the  present 
creditors  of  said  bank,  upon  the  faith  thereof,  and  the  lia- 
bilities of  said  bank  have  been  thereby  greatly  swelled,  to 
the  injury  of  all  the  existing  creditors  thereof.     That  in  or 

about  the  months  of and for  and  during  the 

years  19..  and  19..  reports  were  made  by  said  bank,  in 
accordance  with  Chapter  94,  Wisconsin  Statutes  of  1913, 
and  that  said  reports  purported  to  truly  state  the  condition  of 
said  bank,  and  the  resources  and  liabilities  thereof,  and  that 
each  of  said  reports  was  sworn  to  by  one  of  the  officers  of  said 
bank,  and  that  said  report  for  the  year  19. .  was  attested  as 
correct  by  said  defendants  S....  T....,  Q....  R....  and 
U . . . .  V .... ,  and  that  said  report  for  the  year  19 . .  was  at- 
tested as  correct  by  said  defendants  W . . .  .  Z . .  .  .  and  S . . . . 
T. . . .,  and  that  the  same  were  so  sworn  to  by  said  officer 
and  attested  by  said  directors,  and  permitted  to  be  sworn 
and  attested  and  filed  as  aforesaid,  by  the  other  officers  and 
directors  of  said  bank,  notwithstanding  the  knowledge  of 
such  officers  and  directors  of  said  bank,  of  the  condition 


Form  1699.]  1178  [Chapter  LXXV. 

thereof  as  aforesaid,  and  that  such  reports  were  false,  mis- 
leading and  fraudulent,  to  the  knowledge  of  such  officers 
and  directors,  and  that  the  resources  of  said  bank  were 
stated  therein  to  be  largely  in  excess  of  the  actual  resources 
thereof,  and  that  the  liabilities  of  said  bank  were  stated 
therein  to  be  largely  less  than  the  actual  liabilities  thereof, 
and  that  by  reason  of  the  making  and  filing  thereof  large 
sums  of  money  were  deposited  in  said  bank,  and  extensive 
credit  extended  thereto,  by  many  persons,  including  some 
of  the  present  creditors  of  said  bank,  upon  the  faith  there- 
of, and  the  liabilities  of  said  bank  thereby  largely  increased, 
to  the  injury  of  the  present  depositors  and  creditors  there- 
of.     That  shortly  after  the  capital  stock  of  said  bank  had 

been  increased  from dollars  to dollars,  the 

then  directors  of  said  bank,  pretending  to  claim  that  said 
bank  had  from  the  time  of  its  organization  earned  the  sum  of 

dollars,  and  that  it  then  had  a  surplus  of   

dollars,  voted,  declared  and  directed  that  said  sum  of 

dollars  be  used  for  the  purpose  of  paying  the  balance  then 

due   from   the   owners   of   the    original    dollars  of 

the  stock  of  said  bank    upon  their  subscriptions,  and  that 

the  balance  remaining   of   said    dollars   after   said 

application  should  be  applied  towards  the  payment  of  the 

additional dollars  of  capital  stock  issued  during  said 

year  19.  ,,  and  that  again,  and  in  the  year  19. .,  the  said 
directors  of  said  bank,  claiming  that  the  said  bank,  between 

the  years  19..    and   19..   had  earned  the  sum  of   

dollars  as  profits,  or  had  a  surplus  amounting  to  that  sum, 

voted,  declared  and  directed  that  said  sum  of dollars 

should  be  used  and  appropriated  for  the  payment  of  the 

balance  due  for  said  additional dollars  of  stock,  and 

that  said  sum  of dollars  and  said  sum  of dol- 
lars were  so  used  and  appropriated,  although  said  directors 
well  knew,  as  the  fact  was  and  is,  that  at  said  times  when 
said  sums  were  respectively  applied  to  the  payment  of  said 
stock,  said  bank  had  not  earned  the  amount  thereof,  nor 
any  amount  whatever,  and  had  no  surplus,  and  that  the 
application  of  said  sums  impaired  and  reduced  the  assets  of 
said  bank,  to  the  benefit  of  said  directors  and  other  stock- 
holders of  said  bank  who  received  the  same,  and  to  the  preju- 
dice of  the  existing  creditors  of  said  bank,  some  of  whom 
were  creditors  thereof  at  the  time  said  different  amounts 


Chapter  LXXV.]  1179  [Form  1699. 

were  appropriated  and  used  for  the  payment  of  said  stock, 
and  that  the  officers  of  said  bank,  since  the  time  when  said 
pretended  earnings  were  so  appropriated  and  used,  though 
well  knowing  the  facts  aforesaid,  have  negligently  and  care- 
lessly allowed  it  to  be  published  and  stated  that  said  bank 
had  in  fact  a  surplus,  and  that  the  capital  stock  thereof  had 
been  fully  paid,  and  that  thereby  many  persons,  among 
whom  were  some  of  the  present  creditors  of  said  bank,  were 
induced  to  deposit  money  therein,  and  extend  credit  thereto, 
to  the  injury  of  these  plaintiffs  and  all  the  present  creditors 
of  said  bank.  And  that  officers  and  directors  have  so  care- 
lessly and  negligently  managed  and  conducted  the  affairs  of 
said  bank  that  such  part  of  the  capital  stock  thereof  as  was 
in  fact  paid  in  has  been  wholly  lost,  wasted,  squandered, 

embezzled  and  stolen,  together  with  over dollars  of 

the  deposits  in  said  bank,  and  that  the  present  assets  of 
said  bank  will  pay  but  a  very  small  percentage  of  the  present 
indebtedness  of  said  bank  to  its  depositors  and  creditors. 
WHEREFORE  plaintiffs  pray  that  said  defendant,  the 

Bank  of   be  adjudged  to  be  severally  indebted  to 

these  plaintiffs  respectively,  for  the  amount  of  their  respect- 
ive claims,  as  hereinbefore  set  forth,  together  with  interest 

thereon  from  said   ....  day  of ,  19.  .   [date  when  the 

bank  closed  its  doors]  and  that  each  and  every  of  said  de- 
fendant stockholders  be  adjudged  to  be  liable  to  the  plain- 
tiffs, and  all  creditors  who  are,  or  may  become,  parties  to  this 
action,  for  the  balance  unpaid  upon  the  stock  owned  and 
held  by  said  shareholders  respectively,  and  in  addition 
thereto  for  the  amount  of  stock  owned  by  them  respectively 
at  the  time  of  the  commencement  of  this  action,  and  within 
six  months  next  prior  thereto,  and  for  the  amount  of  the 
dividends  paid  to  said  stockholders  respectively,  with 
interest  thereon  from  the  time  of  such  payment;  that  said 
defendant  bank,  its  officers,  directors,  stockholders  and 
agents,  be  restrained  by  the  order  of  this  court  from  exer- 
cising any  of  its  corporate  franchises,  and  from  receiving  any 
debts  or  demands  due  to  said  defendant  bank,  and  from  pay- 
ing or  transferring  to  any  person  any  of  its  moneys  or 
credits  until  the  further  order  of  this  court;  that  the  receiver- 
ship of  the  property,  moneys  and  effects  of  said  bank  be 
continued;  that  all  other  creditors  of  said  bank  be  required 
to  exhibit  their  claims,  and  become  parties  to  this  action; 


Form  1700.]  1180  [Chapter  LXXV. 

that  a  final  judgment  herein  may  be  rendered  according  to 
law,  and  that  thereupon  the  court  cause  to  be  made  an 
equitable  distribution  of  the  property  of  said  bank,  and  of 
the  proceeds  thereof,  to  its  creditors;  that  if  such  property 
be  insufificient  to  discharge  the  debts  of  said  bank,  the 
court,  by  order  and  judgment,  compel  the  stockholder  de- 
fendants to  pay  in  the  amount  due  and  unpaid  on  the  shares 
of  stock  held  by  them,  or  so  much  thereof  as  may  be  neces- 
sary; that  if  the  debts  of  said  bank  still  remain  unsatisfied, 
that  the  court  ascertain  the  respective  liabilities  of  said  stock- 
holder defendants,  and  determine  the  amount  payable  by 
each,  and  enforce  such  judgment  as  in  other  cases;  that  each 
stockholder  defendant  be  adjudged  to  repay  each  and  every 
dividend  received  by  him,  with  interest  from  the  time  such 
dividends  were  paid;  that  said  officers  and  directors  be  ad- 
judged to  pay  all  the  dividends  declared  and  paid  as  herein- 
before set  forth,  to  the  present  creditors  of  said  bank,  who 
now  or  may  become  parties  to  this  action;  that  said  officers 
and  directors  be  adjudged  to  pay  all  the  remaining  indebted- 
ness of  said  bank,  to  the  creditors  thereof,  who  are  now, 
or  may  become  parties  hereto;  and  that  such  other  and  fur- 
ther relief  be  granted  as  may  be  just  and  equitable;  and  that 
plaintiffs  have  the  costs  and  disbursements  of  this  action. 

1700.  Amended  complaint  in  creditor's  action  against 
insolvent  bank  and  its  officers,  to  sequestrate 
property  and  enforce  statutory  and  common  law 
liabilities  of  the  stockholders  and  officers  (sus- 
tained in  Hurlbut  v.  Marshall,  62  Wis.  590;  22 
N.  W.  852). 

The  above  named  plaintiff,  in  his  own  behalf  and  in  behalf 

of  all  other  creditors  of  said  defendant   Bank,  who 

choose  to  come  in  and  be  made  parties  hereto,  by  this,  the 
amended  complaint  herein,   shows  to  this  court: 

I.  That  the  said  defendant, Bank  is  and  for  sev- 
eral years  last  past  has  been  a  banking  corporation,  with 
banking  powers,  duly  organized,  existing  and  doing  business 

as  a  bank  in  the  city  of ,  in  the  state  of ,  under 

and  by  virtue  of  the  laws  of  said  state. 

II.  That  said  corporation  is  indebted  to  this  plaintiff  in 
the  sum  of dollars,  being  a  balance  of  several  sums 


Chapter  LXXV.]  1181  [Form  1700. 

deposited  by  this  plaintiff  in  said  bank  on  and  between  the 

....  and  ....  days  of ,  19 . .,  aggregating  the  sum  of 

dollars.     That  said  deposits  were  made  as  aforesaid 

in  the  usual  course  of  business.  That  payment  of  said  bal- 
ance has  been  duly  demanded  of  said  defendant  bank  by  this 
plaintiff,  and  payment  thereof  refused,  and  that  no  part 
thereof  has  been  paid.  That  said  defendant  is  also  indebted 
to  a  large  number  of  persons  other  than  this  plaintiff,  whose 
names  and  the  respective  amounts  due  to  each  are  unknown 
to  this  plaintiff.     That  the  aggregate  amount  of  said  other 

indebtedness  exceeds   the   sum   of    dollars,   as   this 

plaintiff  is  informed  and  believes.  That  this  action  is 
brought  in  behalf  of  this  plaintiff  and  in  behalf  of  all  other 
creditors  of  said  defendant  bank  who  may  choose  to  come 
in  and  be  made  parties  hereto  or  become  interested  herein. 

III.  That  said  defendant  has  closed  its  banking  office,  and 
has  become  and  is  insolvent.  That  it  has  a  large  amount  of 
assets,  consisting  of  cash,  choses  in  action,  and  other  property 
to  an  am^ount  unknown  to  this  plaintiff,  but  less  in  value  in 
the  aggregate  than  the  aggregate  amount  of  its  indebtedness. 
That  said  choses  in  action  and  other  property  ought  to  be 
converted  into  cash  and  applied  to  the  payment  of  its  indebt- 
edness. 

IV.  The  plaintiff  further  alleges  that  ever  since  the  .... 

day  of ,  19. .,  the  said  banking  corporation  has  been 

wholly  insolvent,  and  that  during  the  whole  of  said  period, 

while  its  liabilities  have  exceeded dollars,  the  value 

of  its  assets  has  been  less  than dollars.  That  dur- 
ing the  whole  of  said  period  the  said  defendants  [naming  the 
directors]  were  the  directors  of  said  corporation,  and  stock 
holders  owning  stock  therein  to  the  amount  hereinafter 
stated.  That  the  capital  stock  of  said  corporation,  as  fixed 
by  its  articles,  and  certificate  of  organization,  was  and  is 

dollars,  divided  into   ....  shares  of   dollars 

each.  That  notwithstanding  such  insolvency,  the  said 
directors,   knowing  thereof,   as   plaintiff    is    informed    and 

believes,  on  the  ....  day  of ,  19. .,  and  semi-annually 

thereafter,  up  to  and  including  the    ....   day  of    , 

19.  .,  voted,  declared  and  paid  dividends  of  ....  per  cert 

on  said   dollars  of  capital  stock,  and  each  of  said 

directors  voted  for  each  and  every  of  said  dividends,  and  re- 
ceived the  same  on  their  respective  shares  of  capital  stock  as 


Form  1700.]  1182  [Chapter  LXXV. 

hereinafter  stated,  without  having  any  reason  to  beUeve 
there  were  suflicient  net  profits  properly  applicable  thereto 
to  pay  said  dividends.  That  said  votes  of  said  directors 
declaring  said  dividends,  when  said  corporation  was  insolvent 
as  aforesaid,  diminished  and  impaired  the  capital  and  the 
capital  stock  of  said  corporation,  and  that  there  was  never 
any  net  profits  of  said  corporation  or  its  business  applicable 
to  the  payment  of  said  dividends  or  either  of  them.  That, 
as  plaintiff  is  informed  and  believes,  neither  of  said  directors 
ever  paid  in  full  for  their  said  shares  of  said  capital  stock. 
That  "Schedule  A"  hereto  annexed  and  made  a  part  hereof, 
shows  the  names  of  the  defendant  stockholders  and  the 
number  of  shares  owned  and  held  by  each  at  the  time  of  the 
declaration  and  payment  of  each  of  said  dividends,  and  the 
amount  of  dividends  paid  to  and  received  by  each  of  said 
stockholders  on  each  declaration  of  dividend  as  aforesaid. 

V.  The  plaintiff  further  alleges  that  on  the  ....  day  of 

,  19 . . ,  the  defendant  H . . . .  S . . . .  owned  ....  shares 

of  said  capital  stock,  etc.  [give  the  names  of  the  stockholders 
and  number  of  shares  owned  by  each].  That  the  ownership  of 
said  stock  at  the  time  of  the  commencement  of  this,  action 

was  and  still  is  the  same  as  on  said  ....  day  of ,  19 .  ., 

except  that  said  L. . . .  N. . . .  in  form  transferred  his  said 
....  shares  to  said  H ....  S ....  on  or  about  the  ....  day  of 

,  19. ..  That,  as  the  plaintiff  is  informxcd  and  believes, 

said  transfer  last  mentioned  was  not  made  in  good  faith  but 
with  the  intent  on  the  part  of  said  L . . . .  N . . .  .  and  H . . . . 
S.  . . .  to  release  said  L. . . .  N.  . .  .  from  liability  as  a  share- 
holder of  said  corporation,  and  with  full  knowledge  on  their 
part  of  the  insolvency  of  said  bank. 

VI.  The  plaintiff  further  alleges  that  at  the  time  each  of 
said  dividends  was  declared  and  paid  as  aforesaid  a  large 
portion  of  the  identical  debts  which  said  corporation  owed 
at  the  time  of  the  commencement  of  this  action  and  which 
it  still  owes  to  its  creditors,  existed  and  was  then  due  and 
owing  from  said  corporation  to  the  same  creditors,  and  that 

said  portion  ever  since  the  ....   day  of ,  19. .,  has 

exceeded  the  sum  of   dollars. 

VII.  That  during  all  the  time  from  the  ....  day  of 

19. .,  to  the  commencement  of  this  action,  said  H.  . . .  S. . . . 
was  president  and  said  L . . . .  N . . .  .  the  cashier  of  said  cor- 
poration.  That,  as  plaintiff  is  informed  and  believes,  during 


Chapter  LXXV.]  1183  [Form  1700. 

said  last  mentioned  period  said   II. . . .    S. . . .    fraudulently 

converted  more  than dollars  of  the  funds  of  said  bank 

to  his  own  use,  and  replaced  the  same  with  old  and  worthless 
bonds  and  securities,  and  said  president  and  cashier,  know- 
ing said  bonds  and  securities  to  be  worthless,  reported  the 
same  in  their  annual  reports  and  statements  filed  with  the 
register  of  deeds  and  slate  treasurer  during  all  of  said 
period  as  of  their  full  face  value. 

VIII.     That  during  all  of  said  period  from  the  ....  day 

of ,  19.  .,  to  the  commencement  of  this  action  the  said 

directors  of  said  banking  corporation  grossly  neglected  to 
perform  their  ofTicial  duties  as  such  directors,  and  negligently 
permitted  the  money,  property  and  effects  of  said  bank  to 
be  stolen,  wasted  and  squandered.  That  they  negligently 
permitted  various  persons  and  corporations,  who  were  in- 
solvent and  irresponsible,  to  overdraw  their  accounts  to  a 
large  amount  without  security,  and  negligently  permitted 
the  money  of  said  bank  to  be  loaned  to  irresponsible  persons 
and  corporations  without  adequate  security,  whereby  said 
money  was  lost,  and  negligently  permitted  the  said  presi- 
dent to  steal  and  embezzle  the  funds  and  securities  of  said 
bank  and  to  use  them  for  his  own  purpose;  and  that  said 
directors  so  carelessly  and  negligently  conducted  the  affairs 
of  said  bank  that  its  entire  capital  surplus,  property  and 

effects,   and  more  than    dollars  of  its  funds,  with 

which  to  pay  its  creditors,  were  stolen  and  lost,  whereby  it 
became  and  is  utterly  insolvent  and  unable  to  pay  its 
creditors  more  than  ....  cents  on  the  dollar  of  its  indebted- 
ness. 

WHEREFORE  the  plaintiff  prays  that  said  banking  cor- 
poration be  adjudged  to  be  indebted  to  the  plaintiff  in  the 

sum  of dollars;  that  each  and  every  of  said  defendant 

stockholders  be  adjudged  to  be  liable  to  the  plaintiff,  and  all 
creditors  who  shall  become  parties  hereto,  on  account  of  their 
indebtedness  to  the  amount  of  stock  ov/ned  by  them  re- 
spectively at  the  time  of  the  commencement  of  this  action 
and  within  six  months  next  prior  thereto;  that  said  corpora- 
tion, its  officers,  agents,  stockholders  and  directors  be  re- 
strained by  the  order  of  this  court  from  exercising  any  of 
its  corporate  franchises  and  from  receiving  any  debts  or 
demands  due  said  bank,  and  from  paying  or  transferring  to 
any  person  any  of  its  moneys  or  effects  until  the  further  order 


Form  1701.]  1184  [Chap'icr  LXXV. 

of  this  court.  That  a  receiver  may  be  appointed  to  take 
possession  of  all  the  monej^s,  property  and  assets  of  said 
defendant  bank,  with  the  usual  and  full  powers  of  a  receiver 
in  such  cases;  that  this  court  fix  a  time  within  which  all  the 
other  creditors  of  eaid  bank  shall  be  required  to  exhibit 
tl  eir  claims  and  become  parties  hereto;  that  a  final  judgment 
herein  may  be  rendered,  according  to  law,  and  that  thereupon 
the  court  cause  to  be  made  an  equitable  distribution  of  the 
property  of  said  bank  and  of  the  proceeds  thereof  to  its 
creditors;  that  if  such  property  be  insufficient  to  discharge 
the  debts  of  said  bank  the  court,  by  order  and  judgment, 
compel  each  stockholder  defendant  to  pay  in  the  amount 
due  and  unpaid  on  the  shares  of  the  stock  held  by  him,  or 
so  much  thereof  as  may  be  necessary;  and,  if  the  debts  of 
said  bank  shall  then  remain  unsatisfied,  that  the  court  ascer- 
tain the  respective  liabilities  of  said  stockholder  defendants, 
and  determine  the  amount  payable  by  each,  and  enforce  such 
judgment,  as  in  other  cases;  that  each  stockholder  de- 
fendant be   adjudged   to   repay  each   and   every  dividend 

received  by  him  since  and  including  the  ....  day  of 

19. .,  with  interest  from  the  time  said  dividends  were  paid; 
that  said  directors  be  adjudged  to  pay  all  the  dividends  de- 
clared and  paid,  as  hereinbefore  set  forth,  to  the  present 
creditors  of  said  bank  who  shall  become  parties  hereto,  and 
whose  debts  existed  at  the  time  each  and  every  or  any  of  said 
dividends  were  declared  and  paid;  that  said  directors  be  ad- 
judged to  pay  all  the  debts  of  said  bank  now  existing  which 
also  existed  at  the  time  each  and  every  or  any  of  said  divi- 
dends were  declared  and  paid;  and  said  directors  be  ad- 
judged to  pay  all  the  indebtedness  of  said  bank  owing  to  the 
creditors  thereof  who  shall  become  parties  hereto;  and  that 
such  other  relief  be  granted,  as  may  be  just  and  equitable, 
together  with  the  costs  and  disbursements  of  this  action. 

1701.  Complaint  by  creditor  of  insolvent  business  cor- 
poration to  enforce  liability  of  stockholders  for 
wages  due  employees  under  Wis.  stats.  1913 
sec.  1769  (adapted  from  complaint  in  Sleeper  v. 
Goodwin,  67  Wis.  577;  31  N. "w.  335). 

The  plaintiff,  who  brings  this  action  on  behalf  of  himself 
and  all  other  judgment  creditors  of  the  C. . . .  D, . . .  com- 


Chapter  LXXV.]  1185  [Form  1701. 

pany  whose  executions  have  been  returned  unsatisfied  and 
whose  judgments  have  been  rendered  for  demands  due  from 
said  corporation  to  clerks,  servants  and  laborers  for  services 
rendered  within  the  period  of  six  months,  respectively,  and 
who  wish  to  come  in  and  become  parties  to  this  action, 
complains   of   the   defendar.ts,    an  1    alleges: 

I.  That  the  defendant,  the  C .  D . . . .  company,  was 

incorporated  under  the  laws  of  the  state  of on  the  .... 

day  of ,  19. .,  with  a  capital  stock  of dollars, 

for  the  purpose  of  manufacturing  wagons,   farming  tools, 

etc.,  and  that  on  or  about  the   ....   day  of ,  19. ., 

the  capital  stock  of  said  corporation  was  duly  increased  to 

dollars.     That  immediately  upon  its  incorporation, 

as  aforesaid,  the  defendant  corporation  proceeded  to  carry 
out  the  purpose  of  its  organization  until,  on  or  about  the 

....   day  of   19..,  when  it  became  insolvent  and 

suspended  business,  and  that  it  was  not  and  never  has  been 
a  railroad  corporation. 

II.  That  on  or  about  the  ....  day  of ,  19.  .,  said 

company  hired  the  plaintiff  to  perform  services  in  its  shop 
in  the  business  of  making  wagons;  that  the  plaintiff  contin- 
ued to  work  for  the  company  as  a  laborer  or  servant  from 

that  time  until  the  ....  day  of ,  19. .,  at  which  time 

the  company  was  indebted  to  plaintiff  for  labor  and  services 

performed  by  him  in  the  sum  of dollars,  and  that  no 

part  of  the  same  has  ever  been  paid;  that  said  sum  was 
wholly  due  and  earned  within  a  period  of  six  months  im- 
mediately preceding  said  ....  day  of ,  19 .  . ;  that  on 

the  ....  day  of ,  19.  .,  plaintiff  commenced  an  action 

against  said  corporation  upon  the  aforesaid  demand  and  on 

the  ....  day  of ,  19 .  .,  at  a  special  term  of  the 

court  for  the  county  of obtained  a  judgment  of 

dollars  on  account  of  said  claim  and  interest  thereon,  with 

dollars,  costs  of  suit;  that  an  execution  was  duly 

issued  out  of  said  court  upon  said  judgment,  and  placed  in 

the  hands    of    the    sheriff    of     county,     who   on 

,  19.  .,  returned  the  same  wholly  unsatisfied. 

III.  That  on  the   ....  day  of ,  19 . . ,  the  C . . . . 

D . . . .  company  had  become  greatly  embarrassed  financially, 

and  indebted  to  the  amount  of  about   dollars;  and 

on  the   ....   day  of   ,  19. .,  duly  assigned  to  L. .  .  . 

M . . . . ,  of ,  state  of ,  all  and  singular  its  real 

75 


Form  1701.]  1186  [Chapter  LXXV. 

and  personal  property,  chattels,  choses  in  action,  books  and 
papers  in  trust  that  he  should  take  possession  of  such  pro- 
perty, and  sell  and  dispose  of  the  same,  and  convert  the  same 
into  money,  and  collect,  recover  and  get  in  all  due  bills, 
securities,  notes  and  accounts  of  said  company,  and  out  of 
the  proceeds  to  pay  the  reasonable  expenses  of  his  trust  with 
a  reasonable  compensation  to  himself,  and  out  of  the  residue, 
if  sufficient,  to  pay  the  debts  in  full;  if  not  sufficient, to  pay 
them  ratably,  without  preferences;  that  said  assignee  duly 
gave  his  bond  to  faithfully  execute  the  duties  of  his  trust, 
which  bond  with  a  true  copy  of  the  assignment  was  filed  in 

the  office  of  the  clerk  of  court  for   county,  on  the 

....  day  of ,  19. . ;  that  said  assignee  duly  endorsed 

on  said  copy  of  assignment,  his  consent  to  take  upon  himself 
the  duties  of  his  trust,  and  a  certificate  that  the  same  was  a 
true  copy  of  the  original;  that  within  ten  days  thereafter 
said  assignee  filed  in  the  office  of  said  clerk  a  correct  inventory 
of  the  assets  of  the  corporation,  and  a  list  of  its  creditors, 
with  amount  due  to  each,  verified  and  certified  as  required 
by  law;  that  said  assignee  took  possession  of  said  property 

on  the  ....  day  of ,  19.  .,  and  still  is  such  assignee, 

still  engaged  in  performing  the  duties  of  his  said  trust;  that 
he  has  collected  all  the  demands  and  accounts  due  to  said 
company,  or  has  converted  or  disposed  of  the  same,  and 
that  said  company  has  no  property  or  efTects  of  any  kind 
other  than  those  which  the  said  assignee  has  already  col- 
lected or  disposed  of,  or  is  now  engaged  in  collecting;  that 
the  time  of  making  assignee's  final  report  has  been  extended 

from  time  to  time  by  the court  for county; 

and  that  said  assignee  has  not  filed  the  same  as  yet. 

IV.     That  by  the  articles  of  association  the  capital  stock  of 

said  corporation  was dollars,  divided  into  shares  of 

dollars  each;  that  at  the  time  of  incurring  the  com- 
pany's debt  to  the  plaintifT,  and  down  to  the  present  time, 
and  at  the  time  of  the  rendition  of  the  judgment  above  set 
forth,  and  at  the  date  of  the  commencement  of  this  action 

I . .  . .  D . . .  . ,  of ,  state  of ,  was  a  stockholder 

in  said  corporation,  holding  ....  shares  of  stock  therein, 
to  the  amount  of dollars. 

WHEREFORE  plaintifT  prays  judgment  for  the  discovery 
of  all  persons  who  may  be  stockholders,  that  when  so  dis- 
covered they  may  be  made  parties  to  this  action;  that  the 


Chapter  LXXV.]  1187  [Form  1702. 

stockholders  be  adjudged  to  pay  into  court  an  amount  equal 
to  their  capital  stock  respectively,  or  so  much  as  may  be 
necessary  to  discharge  the  sum  of dollars,  with  in- 
terest thereon  from  the  ....  day  of ,  19. .,  together 

with  the  sum  of dollars,  costs  of  said  execution  and 

return,  and  that  the  plaintiff  may  have  such  other  or  fur- 
ther relief  in  the  premises  as  shall  be  just,  together  with  costs. 

1702.  Complaint  by  creditor  against  insolvent  bank  and 
stockholders  to  enforce  additional  liability  of 
stockholders  under  the  banking  law  (adapted 
from  complaint  in  Booth  v.  Dear,  96  Wis.  516; 
71  N.  W.  816). 

The  plaintifT,  for  himself  and  on  behalf  of  all  other  persons 
who  are  creditors  of  the  said  defendant  G . . .  .  N .  . . .  Bank 
who  may  in  due  time  come  in  and  seek  relief  by  and  who  shall 
contribute  to  the  expenses  of  this  action,  for  an  amended 
complaint  complains  of  the  said  defendants  and  alleges: 

I.  That  the  said  defendant,  C. . . .  N. . . .  Bank,  is  now 
and  was  at  all  times  herein  mentioned,  a  banking  corporation 
created  and  existing  by  virtue  of  and  under  the  laws  of  the 
state  of  Wisconsin,  organized  pursuant  to  an  act  entitled, 
"An  Act  to  Authorize  the  Business  of  Banking,"  approved 

,  19.  .,  being  Chapter  ....  of  the  Laws  of  19. .,  and 

acts  amendatory  and  supplemental  thereto. 

II.  That  the  amount  of  its  capital  stock  is dollars. 

That  the  said  capital  stock  is  divided  into  ....  shares,  each 

share  being  of  the  face  or  par  value  of dollars.   That 

its  place  of  business  is  the  city  of ,  in  the  county  of 

,  in  the  state  of ,  and  that  prior  to  the  ....  day 

of ,  19 .  .,  it  was  actively  engaged  in,  and  was  carrying 

on  a  banking  business  in  the  said  city  of ,  but  that  on 

the  said  ....  day  of ,  19. .,  it  duly  made  a  voluntary 

assignment  of  all  its  property,  credits,  and  effects  of  every 

description,   to  one    Trust   Company,   pursuant  to 

Chapter   ....  of  the   ....  statutes  of  the  state  of   , 

and  acts  amendatory  and  supplemental  thereto.     That  the 

said Trust  Company  immediately  qualified  as  such 

assignee,  accepted  the  trust  imposed  thereby  and  entered 
on  the  execution  thereof.  That  at  the  time  the  said  assign- 
ment was  made  the  C . . . .  N . . . .  bank  was  indebted  to  the 


Form  1702.]  1188  [Chapter  LXXV. 

state  of in  the  sum  of dollars,  that  it  was  in- 
debted to  the  city  of in  the  sum  of dollars, 

and  that  it  was  indebted  to  divers  other  creditors  in  various 

sums,  amounting  in  all  to  a  total  indebtedness  of   

dollars.     That  the  entire  assets  of  the  said  bank  assigned  as 

aforesaid  did  not  then  and  do  not  now  exceed  in  value 

dollars.  That  at  all  times  since  the  date  of  the  said  volun- 
tary assignment  the  banking  ofTice  of  the  said  C . . . .  N . . .  . 
Bank  has  been  closed  and  it  has  done  no  business.  That  it 
has  no  property,  credits,  or  effects  of  any  description  subject 
to  execution,  or  which  can  be  reached  by  action  at  law,  or 
which  can  be  sequestrated  in  an  action  in  equity,  and  that  it 
is  wholly  insolvent. 

III.  That  all  the  said  defendants,  other  than  the  said 
C- . . .  N . . .  .  Bank,  are  now  and  were  within  the  six  months 
next  preceding  the  date  of  the  commencement  of  this  action, 
and  while  the  indebtedness  hereinafter  described  existed, 
stockholders  in  the  said  corporation,  and  that  each  of  them 
now  holds  or  has  held  within  the  said  six  months  the  number 
of  shares  of  stock  therein,  and  of  the  par  value  set  opposite 
his  name,  to-wit,  [give  names  of  stockholders,  number  of  shares 
held  by  each,  and  par  value.]  That  the  persons  herein  named 
as  stockholders  are  all  the  persons  that  this  plaintiff  has  been 
able  to  discover  who  hold  stock  in  said  corporation,  or  who 
are  liable  as  stockholders  therein,  and  this  plaintiff  alleges, 
on  information  and  belief,  that  they  are  all  the  persons  who 
own  stock,  or  who  are  liable  as  stockholders  therein. 

IV.  That  on  the  ....  day  of ,  19. .,  at  and  before 

the  time  the  said  C .  .  . .  N . . . ,  Bank  made  the  said  assign- 
ment and  ceased  to  do  business,  as  aforesaid,  this  plaintiff 
had  on  deposit  with  the  said  C .  . . .  N ,  . . .  Bank,  which  had 
been  deposited  by  this  plaintiff  in  the  usual  course  of  busi- 
ness, and  which  was  subject  to  check,  the  sum  of   

dollars'  and  ....  cents,  for  which  sum  the  said  C . . . .  N 

Bank  was  then  and  is  now  indebted  to  this  plaintiff. 

V.  That  this  plaintiff  has  duly  filed  with  the  clerk  of  the 

court  in  and  for  said  county  an  affidavit  setting  forth 

the  nature,  consideration  and  amount  of  his  said  debt  on  ac- 
count of  his  said  deposit  with  said  bank,  over  and  above  all 

setoffs,  and  in  accordance  with  section  No of 

Statutes  of  the  state  of ,  and  that  no  dividend  has 

been  paid  thereon. 


Chapter  LXXV.]  1189  [Form  1702. 

VI.  That  on  the   ....  day  of ,  19. .,  one  O. . . . 

P Esq.,  a  justice  of  the  peace  in  and  for  said  county  of 

,  and  state  of ,  while  sitting  as  such  justice  of 

the  peace,  duly  rendered  a  judgment  in  favor  of  one  W. . . . 
X. . . .  and  against  the  said  C. . . .  N. . . .  Bank,  for  the  sum 

of dollars  and  ....  cents,  exclusive  of  costs,  and  for 

dollars  and   ....  cents  costs,  in  all  for  the  sum  of 

dollars  and    ....   cents.     That  said  judgment  was 

rendered  upon  an  indebtedness  contracted  by  the  said  C . . . . 

N Bank  on  the day  of ,  19. .    That  on  the 

day  of ,  19. .,  a  transcript  of  the  said  judgment 

was  duly  filed  in  the  office  of  the  clerk  of  the court  in 

and  for  the  said county,  and  that  the  said  judgment 

was  duly  docketed  in  the  said  office  against  the  said  defend- 
ant on  the  said  ....  day  of ,  19 .  .    That  an  execution 

against  the  property  of  the  said  C . . . .  N . . . .  Bank  was,  on 

the   ....   day  of   ,   19. .,  duly  issued  from  the  said 

court  upon  the  said  judgment,  and  on  the  ....  day 

of ,  19 .  . ,  delivered  to  the  sheriff  of  said county, 

and  that  on  the  ....  day  of ,  19 .  . ,  the  said  sheriff  duly 

returned  the  said  execution  wholly  unsatisfied  for  want  of 

property  to  apply  thereon.     That  on  the  ....  day  of , 

19. .,  the  said  W.  . .  .  X.  .  . .  duly  assigned  to  this  plaintiff 
this  said  judgment,  and  all  his  rights  thereunder,  and  that 
this  plaintiff  is  now  the  lawful  owner  thereof.  That  there  is 
now  due  and  owing  to  this  plaintiff  from  the  said  C .  , , . 

N. . . .  Bank  upon  said  judgment  the  sum  of dollars 

and   ....   cents,  together  wdth  the  sum    of    dollars 

subsequent  costs  thereon,  in  all  the  sum  of dollars 

and  ....  cents;  and  that  there  is  now  due  and  owing  to  this 
plaintiff  from  the  said  C . .  . .  N .  . .  .  Bank  on  account  of  the 

said  deposit  and  the  said  judgment  the  total  sum  of 

dollars  and  ....  cents,  over  and  above  all  setoffs  and  counter- 
claims. 

VII.  That  this  plaintiff  is  informed  and  verily  believes, 
and  alleges  the  fact  to  be,  that  some  of  the  said  defendant 
stockholders  have  within  the  six  months  last  past  transferred 
a  portion  of  their  stock  to  irresponsible  persons  for  the  sole 
purpose  of  avoiding  their  individual  statutory  liability  to 
creditors,  and  that  this  plaintiff  verily  believes  that  unless 
their  stockholders'  liability  is  fixed,  others  will  transfer  their 


Form  1702.]  1190  [Chapter  LXXV. 

stock  to  irresponsible  persons  for  the  same  purpose,  and  that 
loss  to  creditors  will  result  therefrom. 

WHEREFORE  this  plaintiff  prays  judgment:  (1)  That 
all  other  persons  who  are  creditors  of  the  said  G . . . .  N . . . . 
Bank,  and  who  in  due  time  manifest  a  desire  to  come  in 
hereunder,  and  who  contribute  to  the  expense  of  this  action, 
be  made  parties  plaintiff  herein,  and  that  they  be  allowed  to 
prove  their  claim  herein  and  to  participate  in  the  proceeds 
of  this  action.  (2)  That  all  other  persons,  if  any  there  be, 
be  discovered  w^ho  own  stock  in  said  corporation,  or  who 
have  owned  stock  therein  the  six  months  last  past,  or  who 
have  transferred  their  stock  for  the  purpose  of  escaping  their 
individual  statutory  liability  to  creditors  of  the  said  corpora- 
tion, or  who  for  any  other  reason  are  liable  as  stockholders  to 
said  creditors,  and  that  when  so  discovered,  they  be  made 
parties  defendant  herein.  (3)  That  judgment  be  entered 
against  the  said  defendant,  C . . . .  N . .  .  .  Bank,  for  the 
amount  of  this  plaintiff's  said  deposit,  with  interest  thereon, 
and  for  the  amount  of  all  other  creditor's  claims,  with  interest 
thereon,  who  may  come  in  hereunder.  (4)  That  the  stock- 
holders in  said  corporation,  and  all  persons  who  are  liable  as 
stockholders  to  its  creditors,  together  with  the  par  value  of 
stock  owned  by  each,  be  adjudged,  and  that  they  be  ad- 
judged and  decreed  liable  for  the  amount  of  this  plaintiff's 
said  claims  and  all  other  creditors'  claims  who  may  come  in 
hereunder  and  who  shall  set  out  and  prove  their  claims  in  this 
action,  to  a  sum  equal  to  the  par  value  of  stock  held  by  them, 
or  upon  which  they  are  liable,  respectively,  and  that  they 
and  each  of  them  be  ordered  to  pay  the  same,  or  so  much 
thereof  as  may  be  necessary  to  satisfy  the  said  claims  of 
creditors,  together  with  the  costs  and  disbursements  of  this 
suit,  into  court,  for  persons  entitled  thereto.  Or  that 
judgment  be  entered  against  the  said  stockholders  for  the 
amount  of  the  claims  of  this  plaintiff,  and  such  other  credi- 
tor's claims  as  may  come  in  hereunder,  not  exceeding  the 
amount  of  stock  held  by  them,  the  said  stockholders,  and 
for  interest  and  costs.  (5)  And  for  such  other  and  further 
order,  judgment  or  relief  as  to  the  court  shall  seem  just  and 
equitable.     And  this  plaintiff  will  ever  pray. 


CHAPTER  LXXVI. 

COMPLAINTS  IN  ACTIONS  AGAINST  PROMOTERS 
OF  CORPORATIONS. 


1703.  Complaint  in  action  at  law 

by  corporation  against  pro- 
moters, to  recover  secret 
profits  on  real  estate  sold 
to  the   corporation. 

1704.  The  same,  in  equity,  to  re- 

scind sale  and  recover  the 
entire  purchase  price. 

1705.  Complaint  in  action  at  law 

by  corporation  against  pro- 
moters and  third  persons 
conspiring  with  them,  to 
recover   secret   profits   on 


real  estate  sold  to  the 
corporation. 

1706.  Complaint  in   equitable   ac- 

tion by  stockholders  on 
behalf  of  corporation 
against  fraudulent  promot- 
ers where  corporate  officers 
refuse  to  sue. 

1707.  Complaint  in  action  at  law 

by  stockholder  to  recover 
his  individual  damages  re- 
sulting from  the  fraud  of 
promoters. 


Persons  who  purchase  property  or  obtain  an  option  thereon 
for  the  purpose  of  transferring  it  to  a  corporation  to  be 
formed,  and  who  afterwards  form  such  corporation  and  in- 
duce others  to  join  therein  and  purchase  stock  therein,  stand 
in  a  fiduciary  relation  to  such  corporation  and  its  stockhold- 
ers, and  it  is  their  duty  to  fully  disclose  their  relationship 
to  the  property  to  their  associates;  and  if  they  do  not  do  so, 
but  make  a  secret  profit  on  the  property  by  transferring  it 
to  the  corporation  at  a  price  larger  than  they  pay,  the  cor- 
poration may  repudiate  and  rescind  the  contract  and  re- 
cover the  whole  purchase  money,  or  may  keep  the  property 
and  recover  the  amount  of  the  secret  profits  so  made.  Pitts- 
burg Mining  Co.  v.  Spooner,  et  al.,  74  Wis.  307;  42  N.  W. 
259;  Fountain  Sp.  Co.  v.  Roberts,  92  Wis.  349;  66  N.  W.  399. 
The  action  may  be  brought  by  the  corporation,  or  in  case 
the  governing  body  refuse  to  bring  it,  by  the  defrauded 
stockholders  in  equity,  in  behalf  of  the  corporation. 

The  stockholders  who  are  thus  defrauded  may  also,  in  the 
absence  of  an  action  by  the  corporation,  each  sue  at  law  and 
recover  of  the  promoters  his  individual  damages  for  the  fraud, 
to  the  extent  of  the  enhanced  price  he  paid  by  reason  thereof. 
Francy  v.  Warner,  96  Wis.  222;  71  N.  W.  81. 


Form  1703.]  1192  [Chapter  LXXYI. 

1703.  Complaint  in  action  at  law  by  corporation  against 
promoters,  to  recover  secret  profits  on  real  es- 
tate sold  to  the  corporation  (sustained  in  Pitts- 
burg Mining  Co.  v.  Spooner,  74  Wis.  307;  42  N. 
W.  259). 

The  above  named  plaintiff,  which  was  on  the  ....  day  of 

,  19. .,  organized  as  a  corporation  under  the  laws  of 

the  state  of and  is  doing  business  as  such,  complains 

of  the  above  named  defendants,  and  shows  to  this  court: 

I.  That  on  or  about  the  month  of ,  19. .,  the  de- 
fendants conceived  the  idea,  and  conspired  and  agreed  to- 
gether to  promote  the  organization  of  the  plaintiff  corpora- 
tion for  the  ostensible  purpose  of  carrying  on  the  business 
of  mining  iron  ore  on  the  Gogebic  Range,  so-called,  in  the 

state  of ,  but  for  the  real  purpose  of  deceiving  and 

cheating  those  who  might  deal  with  said  company,  and  by 
such  deceit  enriching  themselves  at  the  expense  of  the 
company. 

II.  That  in  pursuance  of  their  scheme  the  defendants 
obtained  for  the  purpose  of  purchase  by  said  company,  tem- 
porary control  of  a  mining  option  on  said  Gogebic  Range, 
said  option  conferring  the  right  on  certain  terms  and  con- 
ditions to  prospect,  explore  and  mine  for  iron  ore  on  the  .... 
half  of  the    ....   quarter  of  section    ....,  township    ...., 

range   ....  in   county  in  the  state  of Said 

option  was  owned  by  E . . . .  &  F . . , .  of in  the  state 

of ,  and  the  price  demanded  by  them  for  it  was 

dollars  and  no  more.  And  at  that  price  the  defendants 
acquired  the  right  to  buy  it  for  a  certain  limited  time. 
Having  thus  secured  the  temporary  control  of  said  option, 
for  the  purposes  of  said  company,  tbe  defendants  proceeded 
to  obtain  subscriptions  to  the  capital  stock  of  the  proposed 
corporation  to  buy  it. 

III.  That  in  order  to  induce  subscriptions  to  said  capital 
stock,  the  defendants  among  other  things  falsely  and  fraud- 
ulently stated  and  represented  to  divers  persons,  and  to  all 
persons  who  became  and  now  are  stockholders  in  said 
company,  that  the  price  demanded  by  E . .  . .  &  F . . . .  for 

said  option  was dollars;  that  it  could  not  be  bought 

for  any  less;  that  the  defendants  were  themselves  desirous 
of  buying  it,  but  were  unable  pecuniarily  to  pay  so  much 


Chapter  LXXVI.]  1193  [Form  1703. 

money,  but  desired  to  organize  a  corporation  to  purchase  it, 
in  which  they  would  themselves  take  stock  to  the  extent  of 
their  ability  and  pay  the  same  price  for  it  that  every  one 
else  would  have  to;  that  all  stockholders  would  be  in  on  the 
"ground  floor";  that  there  was  no  speculation  in  the  pur- 
chase price;  that  they,  said  defendants,  were  making  nothing 
out  of  it,  and  desired  to  make  nothing,  not  even  their  ex- 
penses, unless  the  company  saw  fit  to  reimburse  them,  ex- 
cept what  all  stockholders  would  make  alike  through  the 
operation  of  the  proposed  company  in  mining  the  ores  cov- 
ered by  said  option;  that  it  would  be  necessary  for  the  com- 
pany to  raise    dollars  in  money,  of  which   

dollars  must  be  paid  to  E. . . .  &  F. . . .  for  the  option,  and 

dollars  should  be  held  in  the  company's  treasury  for 

the  purpose  of  development.  In  furtherance  of  said  fraud- 
ulent scheme  and  conspiracy,  the  defendants  drew  up,  and 
by  said  fraudulent  representations  procured  to  be  signed  a 
subscription  paper  of  which  the  following  is  a  copy  [insert 
copy  of  subscription  paper]  that  said  paper  was  so  signed  by 
a  large  number  of  persons,  agreeing  to  take  shares  in  sufTi- 
cient  amount  in  the  aggregate  to  cover  the  entire  proposed 

stock  of  the  projected  corporation,  to-wit:   dollars. 

IV.     That  immediately  after  said  stock  had  thus  all  been 
subscribed,  and  in  pursuance  thereof,  on   the    . . .    day  of 

,  19. .,  the  defendants  organized  a  corporation  in  all 

respects  conformably  to  the  laws  of  the  state  of   

under  the  name  of  the  A. . . .  B . . . .  Company,  said  corpora- 
tion being  the  plaintiff  herein.  The  defendants  were  the 
sole  incorporators  of  said  company,  and  as  such  held  the 
first  meeting  of  the  company  on  the   ....   day  of  March, 

19..,  at   aforesaid,  and  all  of  them  were  present. 

The  defendant,  C.  .  . .  D. .  .  .,  was  at  that  meeting  elected 
president  of  the  company,  and  the  defendant,  J. . . .  K. .  . ., 
treasurer,  and  as  such  they  have  continued  to  act  during  all 
the  time  covered  by  the  facts  herein  alleged.  At  or  about 
the  time  of  said  meeting,  in  further  pursuance  of  said 
fraudulent  scheme,  the  defendant  J....  K....  by  the 
advice  and  procurement  of  the  defendants  C . . . .  D . .  ,  ,  and 
E. . . .  F. .  . .,  but  in  the  joint  interest  of  all  of  them,  sub- 
scribed for  the  entire  stock  of  said  corporation,  to-wit, 

dollars,  except  one  share  each  of dollars,  which  were 

taken  by  the  defendants  G . . . .  D . . . ,  and  E . . . .  F . . . . 


Form  1703.]  1194  [Chapter  LXXVI. 

Thereupon  the  company,  at  the  same  meeting,  by  the 
unanimous  vote  of  defendants,  as  sole  corporators  and 
directors,  adopted  a  resolution  of  which  the  following  is  a 
copy: 

"RESOLVED  that  in  accordance  with  the  subscription  of 
J. . . .  K. . . .  to  the  capital  stock  of  said  company,  the  presi- 
dent and  secretary  hereof  issue  to  him,  or  to  such  person  or 
persons  as  he  may  direct,  and  in  such  number  of  shares  as  he 
may  direct,  all  of  the  said  stock  except  two  shares  thereof, 
one  of  which  is  held  by  said  C . . . .  D . . . .  and  the  other  by 
said  E . . . .  F . . . . ,  the  said  stock  to  the  said  J , . . .  K . . . .  to 
be  issued  as  paid  up  in  full  in  consideration  of  his  making  and 
delivering  to  the  president  of  the  said  corporation,  for  the 
said  corporation,  an  assignment  in  writing,  duly  executed, 
of  an  option  which  he  now  owns  on  the  ....  half  of  the  .... 

quarter  of  section ,  township  . . . .,  range  . . . .,  in 

county,  state  of   " 

And  plaintiff  further  says  that  none  of  said  capital  stock 

except   dollars  thereof  now  held  by  the  defendant 

J . . . .  K . . . .  was  ever  issued  to  him.  That  although  he  con- 
veyed to  the  company  the  mining  option  hereinbefore  men- 
tioned, in  nominal  payment  for  all  the  stock  so  subscribed 
for  by  him,  neither  the  defendant  J. . . .  K. . . .,  nor  any  of 
the  defendants  ever  had,  or  held  any  valuable  interests  in 

said  option  above  the  price  of dollars,  which  had  to 

be  paid  to  E. . . .  &  F. . . .  for  the  same;  that  said  option 
having  been  procured  and  being  held  by  the  defendants  or 
by  the  defendant  J. . . .  K.  . .  .  for  tham,  as  promoters  and 
trustees  of  said  corporation,  whatever  value  or  interest  they 
possessed  or  could  possess  therein  inured  to  and  was  the 
property  of  said  corporation  when  formed,  without  advance 
in  price  or  other  condition  whatever,  and  the  plaintiff  avers 

that  at  that  time dollars  was  the  full  value  of  said 

option, 

V.  The  plaintiff  further  represents  that  the  said  defend- 
ants, in  further  pursuance  of  said  fraudulent  scheme,  and  in 
order  if  possible  to  cover  up  and  conceal  the  true  nature  of 
their  transaction  [but  which  it  in  fact  discloses  rather  than 
conceals],  after  said  subscriptions  were  obtained,  caused  said 
option  to  be  conveyed  to  said  defendant  J . .  . .  K .  .  .  .  with- 
out [a  dollar  of]  consideration;  then  caused  the  company  to 
buy  it  of  him  for  substantially  its  entire  capital  stock,  caused 


Chapter  LXXVL]  1195  [Form  1703. 

the  agreement  to  take  shares  in  the  projected  company,  as 
hereinbefore  set  forth,  to  read  as  an  agreement  to  take  them 
of  said  J. . . .  K. . . .  and  pay  him  for  them  instead  of  the 
company,  and  then  issued  the  shares  so  fraudulently  sub- 
scribed to  the  several  persons  who  by  the  agreement  afore- 
said had  agreed  to  take  them,  and  collected  from  them  the 

sum  of dollars,  paid  E . . . .  &  F . . . .  the  sum  of 

dollars  for  the  option,  kept dollars  in  the  treasury  of 

the  company,  and  fraudulently  captured  and  converted  the 

remaining   dollars  to  their  own  use,  in  violation  of 

their  duties  to  the  company,  as  its  promoters,  trustees  and 
directors,  whereby  your  orator  has  been  greatly  damnified 
and  sustained  a  loss  of dollars  and  upwards. 

VI.  The  plaintiff  further  says  that  in  procuring  control  of 
the  mining  option  aforesaid,  organizing  the  plaintiff  corpora- 
tion, securing  subscriptions  for  its  capital  stock,  collecting 
moneys  thereon,  paying  for  said  option  to  E. . . .  &  F. . . ., 
having  it  conveyed  by  them  to  the  defendant  J , . . .  K . . . . , 
and  by  him  to  the  plaintiff,  and  in  all  other  matters  touching 
the  organization  of  the  plaintiff  corporation  and  the  purchase 
of  said  option,  the  defendants  became  and  were  promoters, 
agents  and  trustees  of  the  plaintiff,  a  fiduciary  relation  of 
especial  trust  and  confidence,  whereby,  and  while  so  acting, 
they  could  not  in  law,  by  whatsoever  specious  pretext,  pre- 
tense or  contrivance,  gain  any  personal  profit  or  advantage 
over  the  plaintiff  or  make  any  valid  contract  with  it,  to  its 
prejudice,   and  to  their  individual  advantage. 

VII.  And  the  plaintiff  further  says  that  the  amount  paid 
to  said  E . . . .  &  F . . . .  by  the  defendants,  on  behalf  of  the 

plaintiff  was  the  sum  of  dollars;  that  the  amount 

obtained   by   the   defendants   from   the   company   on   the 

fraudulent   pretext   of   said   payment   was    dollars, 

dollars  of  which  the  defendants  have  diverted  from 

the  company  and  fraudulently  appropriated  to  their  own  use. 
For  this  amount  they  are  justly  indebted  to  the  plaintiff  as 
for  so  much  money  had  and  received  to  its  use. 

WHEREFORE  the  plaintiff  demands  judgment  for  said 
Bum  of dollars,  with  interest  and  costs. 


Form  1704,  1705.]  1196  [Chapter  LXXVL 

1704.  The  same,  in  equity,  to  rescind  sale  and  recover 

the  entire  purchase  price. 

[Follow  SLibsiantiallij  the  allegations  in  the  last  preceding 
form,  and  add  following  allegation]: 

VIII.  That  the  plaintiff  was  first  informed  of  the  truth 
in  regard  to  the  said  sale  of  said  land  to  said  corporation,  and 
that  said  defendants  had  so  fraudulently  procured  to  them- 
selves an  illicit  and  secret  profit  in  said  lands,  as  aforesaid, 

on  or  about  the  ....  day  of ,  19 . .,  and  that  since  said 

date  the  plaintiiT  has  in  no  manner  ratified  or  affirmed 
said  sale,  but  on  the  contrary  thereof,   on  or  about  the  .... 

day  of ,  19.  .,  this  plaintiff  caused  to  be  executed  a 

quit-claim  deed  of  said  lands,  running  to  the  said  defendants 
as  grantees,  and  tendered  the  same  to  the  defendants,  and 
demanded  of  the  defendants  the  return  of  the  said  considera- 
tion money  so  paid  by  the  plaintiff,  but  the  defendants  re- 
fused and  still  refuse  to  accept  said  deed,  or  return  said 
consideration. 

WHEREFORE  plaintiff  demands  judgment  that  the  said 
sale  and  conveyance  of  said  land  to  the  plaintiff  by  said  de- 
fendants be  adjudged  null  and  void,  and  that  the  same  be 
rescinded;  that  the  said  defendants  be  adjudged  and  required 
to  accept  said  quit-claim  deed,  and  that  the  plaintiff  recover 
of  the  defendants  the  said  sum  of dollars,  the  consid- 
eration money  paid  for  said  land,  with  interest  from  the 

....   day  of ,  19. .,  and  for  such  other  and  further 

relief  as  may  be  just  and  equitable  with  costs. 

1705.  Complaint  in  action  at  law  by  corporation  against 

promoters  and  third  persons  conspiring  with 
them,  to  recover  secret  profits  on  real  estate  sold 
to  the  corporation  (sustained  in  Fountain  S.  P. 
Co.  V.  Roberts,  92  Wis.  345;  66  N.  W.  399). 

I.  That  at  all  the  times  hereinafter  mentioned  the  plain- 
tiff was  and  still  is  a  corporation  duly  organized  and  existing 
under  and  by  virtue  of  the  laws  of  the  state  of 

II.  That,  as  plaintiff  is  informed  and  believes,  for  six 

months  immediately  preceding  the  ....  day  of ,  19. ., 

said  defendants  D . . . .  M . . . .  and  D . . . .  D . . .  .  were  co- 
partners in  business  under  the  name  and  style  of  M . .  . . 
D . . . .   Company,  engaged  in  the  business  of  buying  and 


Chapter  LXXVL]                  1197                           [Form  1705. 
selling  real  estate  in  the  city  and  county  of ,  state  of 


III.  That,  as  plaintiff  is  informed  and  believes,  during 

the  months  of   and    ,   19 .  .,  said  defendants 

W....  D....  and  H....  M....  conceived  the  idea  and 
agreed  together  to  promote  the  organization  of  the  plaintiff 
corporation  for  the  ostensible  purpose  of  purchasing  a 
certain  tract  of  land  and  reselling  the  same  at  a  profit,  but 
in  reality  for  the  purpose  of  defrauding  such  persons  as 
might  become  members  of  such  corporation,  or  might  deal 
with  such  corporation,  and  of  defrauding  such  corporation, 
in  the  purchase  of  said  land,  and  by  so  doing  enriching  them- 
selves, as  hereinafter  fully  set  forth. 

IV.  That  the  said  tract  of  land  was  Known  as  the 

tract,  and  was  described  as  follows  [give  description]. 

V.  That  at  said  time  one  W. . . .  Z. . . .,  of ,  state 

of ,  controlled  said  premises,  by  reason  of  owning  a 

land  contract,  or  option  upon  the  same,  according  to  the 

terms  of  which  W . . . .  &  U . . . .  of ,  state  of    , 

who  were  then  the  legal  ow^ners  of  said  premises,  agreed  to 

convey  said  premises  at  a  price  of dollars;  that  of  said 

purchase  price dollars  was  represented  by  a  mortgage 

which  was  then  an  incumbrance  upon  said  premises;  that 

said  W. . . .  Z. . . .  had  paid dollars  of  said  purchase 

price,  and,  as  plaintiff  is  informed  and  believes,  it  was  pro- 
vided by  the  terms  of  said  option  or  contract  that  said  W .  . . , 
&  U. . . .  would  execute  and  deliver  a  warranty  deed  of  said 
premises  to  said  W .  . . .  Z . . . .  or  his  assigns  upon  payment 

of   dollars,  and  accrued  interest  on  said  mortgage, 

and   the  execution   of   an   additional   mortgage   of    

dollars  upon  said  premises;  that  the  total  cash  payment  nec- 
essary to  be  made  under  said  contract  or  option  to  obtsUn  a 

warranty  deed  of  said  premises  was dollars,  and  said 

interest. 

VI.  That,  as  plaintiff  is  informed  and  believes,  said  de- 
fendants D M .  . . .  and  D D as  such  co- 
partners, know^ing  of  the  fraudulent  purpose  and  intention  of 
said  defendants  W . , . .  D . , . .  and  H . . .  .  M . . . . ,  as  above 
set  forth,  and  in  aid  of  said  fraudulent  purpose  and  intention, 

undertook  and  agreed  with  said  W. . .  .  D and  H 

M. .  .  .  during  the  month  of ,  19.  .,  to  procure  from 

said  W Z. . . .  said  contract  or  option,  and  to  use  and 


Forms  1705.]  1198  [Chapter  LXXV I. 

transfer  the  same  as  said  W . . . .  D . . . .  and  H . . . .  M . . . . 
might  desire  and  direct,  in  carrying  out  said  fraudulent 
scheme,  in  consideration  of  receiving  a  share  of  the  illegal 
profits  to  be  made  out  of  the  subscribers  to  the  stock  of  said 
corporation,  or  out  of  said  corporation. 

VI I.  That,  as  plaintiff  is  informed  and  verily  believes, 
said  defendants  W . . . .  D ,  . . .  and  H . . .  .  M .  . . .  thereupon 
prepared  an  agreement  in  writing,  which  provided  in  effect 
that  the  signer  thereof  agreed  to  pay  the  sums  set  opposite 
their  respective  names  toward  the  purchase  price  of  said 

premises     hereinbefore     described,    at     a    price    of    

dollars. 

VIII.  That,  as  said  plaintiff  is  informed  and  believes, 
said  defendants  W . . . .  D . .  .  .  and  H . . . .  M .  . . .  thereupon 
proceeded  to  procure  subscribers  to  the  stock  of  said  pro- 
posed corporation,  the  plaintiff  herein,  and  to  procure  signa- 
tures to  said  agreement,  and  in  order  to  induce  subscriptions 
to  said  stock,  and  to  induce  signatures  to  said  agreement, 
represented  to  many  and  divers  persons,  and  to  all  persons 
who  became  and  who  now  are  stockholders  in  said  corpora- 
tion, the  plaintiff  herein,  that  it  was  proposed  to  form  a 
corporation  or  association  for  the  purpose  of  purchasing 
said  premises,  and  falsely  represented  to  said  persons  that 

said  premises  were  cheap  at  the  price  of   dollars; 

that  the  defendants  W . .  . .  D and  H . . . .  M . . .  .  were 

themselves  desirous  of  becoming  stockholders  in  said  cor- 
poration to  buy  said  premises  for  said  sum  of dollars, 

and  that  said  defendants  W. . . .  D .  . . .  and  H . . . .  M 

would  subscribe  to  said  stock,  and  falsely  represented  that 
the  price  asked  by  the  owners  of  said  premises  for  the  same 

was dollars,  of  which dollars  would  have  to  be 

paid  in  cash  at  the  time  of  purchasing  the  same,  and    the 

balance,  to-wit, dollars,  could  be  secured  by  mortgage 

upon  said  premises;  and  falsely  represented  that  said  prem- 
ises could  not  be  bought  for  any  less  sum,  and  falsely  repre- 
sented that  said  W. . . .  D . . .  .  and  H. . . .  M . . . .  would 
make  nothing  out  of  said  sale  except  as  members  of  said 
corporation,  and  represented  that  they  desired  to  secure 
enough  signers  of  said  agreement  and  enough  subscribers 
to  the  stock  of  the  proposed  corporation,  besides  themselves, 

to  make  up  the  sum  of dollars  necessary  for  the  cash 

payment  upon  said  premises. 


Chapter  LXXVL]  1199  [Form  1705. 

IX.  That   said   defendants   W D and   H 

M ....  concealed  from  all  persons  to  whom  such  representa- 
tions were  made,  and  from  all  who  signed  said  agreement, 
and  from  all  who  became  stockholders  of  plaintiff's  corpora- 
tion, that  said  premises  could  be  bought  for  a  less  sum  than 

dollars,  and  concealed  from  all  such  persons  that 

said  defendants  W . . . .  D .  . .  .  and  H . . . .  M . . . .,  or  any  of 
said  defendants,  would  make,  or  intended  to  make,  any  profit 
whatever  out  of  said  transaction  for  themselves,  except  such 
profits  as  W . . . .  D . . . .  and  H . . . .  M . . . .  might  make  as 
stockholders  of  said  corporation. 

X.  That   said    defendants    W....    D and    H.... 

M. . . .,  thereupon  circulated  said  subscription  list  or -agree- 
ment, and  by  means  of  said  false  and  fraudulent  representa- 
tions procured  the  signatures  of  many  persons  thereto  for 
various  amounts,  all  of  whom  agreed  to  take  stock  in  said 
corporation,  all  of  whom  were  induced  to  sign  the  same  and 
induced  to  agree  to  take  stock  in  said  corporation  to  buy  said 
premises,  by  said  false  and  fraudulent  representations  so 
made  to  them  by  said  defendants  W . . .  .  D . .  .  .  and  H . .  .  . 
M . . , . ;  that  all  of  said  persons  are  now  stockholders  of  this 
plaintiff. 

XI.  That,  as  plaintiff  is  informed  and  believes,  all  the 
persons  who  became  and  all  persons  who  now  are  stock- 
holders and  who  agreed  to  take  stock  in  said  plaintiff  corpora- 
tion, and  all  persons  who  signed  said  agreement,  with  the 
exception  of  said  defendants  W....  D....  and  H.... 
M . . . .  were  induced  to  become  stockholders  and  to  agree  to 
take  stock  in  the  plaintiff  corporation  and  to  sign  said  agree- 
ment by  means  of  said  false  and  fraudulent  representations 
so  made  by  said  defendants  W . . .  .  D . . . .  and  H .  . . .  M  . . .  . 
and  became  said  stockholders  and  signed  said  agreement  in 
the  belief  that  no  profit  would  be  made  out  of  said  premises, 
except  such  as  might  be  made  by  all  of  said  stockholders 
alike. 

XII.  That  said  defendant  W. . . .  D. . . .  subscribed  for 

stock  in  said  plaintiff  corporation  to  the  amount  of 

dollars;  that  said  defendant  H....  M....  subscribed  for 
stock  in  said  corporation  to  the  amount  of dollars. 

XIII.  That  a  sufficient  number  of  persons  signed  said 
subscription  list  of  agreement  to  make  the  total  amount  sub- 
scribed and  agreed  to  be  paid  for  the  capital  stock  of  said 


Form  1705.]  1200  [Chapter  LXXVI. 

corporation,  and  for  the  purpose  of  purchasing  said  land 
amounting  to dollars,  inclusive  of  the  amounts  sub- 
scribed by  said  defendants,  W . . . .  D . . . .  and  H . . . .  M . . . . 

XIV.  That  immediately  after  such  subscription  and  such 

signatures  had  been  secured,  and  during  the  month  of , 

19 . . ,  said  defendants  W . . . .  D . . . .  and  H . . . .  M re- 
presented to  said  subscribers  or  signers  that  it  was  necessary 
that  the  amounts  respectively  subscribed  toward  the  pur- 
chase price  of  said  premises  or  to  said  capital  stock,  be  paid 
in  at  once  to  said  defendants  W....  D.,..  and  H.... 
M. . . .  in  order  to  enable  them  to  purchase  said  premises  at 

said  price,  to-wit dollars  for  the  said  corporation 

and  for  said  stockholders;  that  relying  upon  and  induced  by 
such  representations  all  of  said  subscribers  paid  said  de- 
fendants W . . . .  D , . . .  and  H . . . .  M . . . .  the  whole  amount 
of  their  respective  subscriptions,  amounting  in  the  aggregate 

to  the  sum  of dollars,  a  large  part  thereof  being  paid 

in  before  the  ....  day  of 19 . . ,  and  the  whole  thereof 

being  paid  in  to  said  W . . . .  D . . . .  and  H M . . .  before 

the   ....  day  of ,  19. . 

XV.  That,  as  plaintiff  is  informed  and  believes,  at  or 
about  the  time  said  defendants  W. . . .  D. . . .  and  H. . . . 
M. .  . .  were  circulating  said  subscription  list  or  agreement, 
and  obtaining  such  subscribers  and  collecting  said  moneys 
the  said  defendant  D. . . .  D. . , .,  acting  on  behalf  of  the 
firm  of  M . . . .  D . . . .  Company,  and  pursuant  to  said  agree- 
ment set  forth  in  paragraph  VI  hereof,  and  with  the  knowl- 
edge and  consent  of  said  D . . . .   M . . . . ,  went  to   , 

state  of    ,   and  purchased  said  contract  upon  said 

premises  from  said  W .  .  . .   Z . . . .   for  the  sum  of   

dollars,  and  had  said  contract  or  option  assigned  to  him  by 

assignment  on  the  back  thereof  signed  by  said  W . . . .  Z 

and  returned  to ,  state  of ,  at  or  about  the  time 

said  defendants  W . . . .  D , . . .  and  H . . . .  M . . . .  had  pro- 
cured said  subscribers  and  had  collected  said  moneys  from 
said  subscribers. 

XVI.  That,  as  plaintiff  is  informed  and  verily  believes, 
said  D . . . .  D . . . . ,  acting  on  behalf  of  said  M .  . .  .  D . . . . 

Company,  shortly  after  he  had  returned  to  the  city  of , 

to-wit,  on  or  about  the  ....  day  of ,  19. .,  received 

from  said  W D . .  . .  and  H M . . .  .  the  sum  of 

dollars  of  the  moneys  collected  from  said  subscribers  in  a 


Chapter  LXXVL]  1201  [Form  1705. 

certificate  of  deposit  on  the Bank  of ,  and  in 

pursuance  of  said  agreement  set  forth  in  paragraph  VI  hereof, 
delivered  and  paid  said  certificate  of  deposit  to  said  W. . . . 
&  U . . . .  as  a  partial  payment  under  said  contract  or  option. 
That,  as  plaintiff  is  informed  and  believes,  at  said  time,  or 

between  said  time  and  the  ....  day  of ,  19. .,  said 

defendant  D . . . .  D . . . .,  acting  on  behalf  of  said  M. . . . 
D. . . .  Company,  assigned  and  transferred  said  contract  or 
option  by  assignment  thereof  written  on  the  back  of  said 

contract  or  option,  and  signed  by  said  D D , . . .,  to  said 

W....  &U....,  and  directed  said  W . . . .  &  U . . . .  to  exe- 
cute and  deliver  the  warranty  deed  of  said  premises  to  such 
person  as  said  W. . . .  D . . . .  and  H. . . .  M . . . .  might  direct 
upon  payment  of  the  balance  due  under  said  contract  or 
option.     That,   as  the  plaintiff  is  informed  and  believes, 

said  W D and  H M paid  to  said  W 

&  U . . . .  in  presence  of  said  D . . . .  D . . . .  on  or  about  the 

day  of ,  19 . .,  the  balance  of  the  cash  payment 

remaining  due  under  said  contract  or  option,  to-wit,  the 

sum  of dollars;  that  said  sum  of dollars  was 

the  balance  of  the  cash  payment  to  be  made  under  said 
contract  or  option,  as  set  forth  in  paragraph  V  hereof. 

XVII.  That  at  the  time  said  money  was  so  paid  to  W . . . . 
&  U. . . .,  as  above  stated,  one  J. . . .  E. . . .  was  a  signer  of 
said  agreement  and  had  agreed  to  take  stock  of  said  proposed 

corporation  to  the  amount  of dollars;  that  the  said 

defendants  W D . . . .    and    H . . . .    M . .  .  .  '  requested 

said  J .  .  .  .  E . . . .  to  become  the  grantee  in  the  deed  of  said 
premises  from  W.  .  .  .  &  U.  .  .  .,  the  owners  thereof,  and  to 
hold  the  title  to  the  same  to  the  benefit  of  said  corporation, 
plaintiff  herein,  until  the  organization  thereof  could  be  per- 
fected, and  they  represented  to  said  J . .  . .  E . . .  .  that  it  was 
necessary  to  have  some  person  to  hold  the  title  to  said  prem- 
ises until  said  organization  could  be  effected;  that  said  J. . . . 
E . . .  .  consented  to  act  as  grantee  in  such  deed  for  the  benefit 
of  said  corporation,  the  said  plaintiff  herein,  and  said  prem- 
ises were  thereupon  conveyed  to  him  by  said  W . . .  .  &  U . . . . 
at  the  request  of  said  W .  .  .  .  D .  .  . ,  and  H. . . .  M . . . .  by  a 

warranty  deed,  on  or  about  the  ....  day  of ,  19. . ; 

that  the  consideration  named  in  said  deed  was  one  dollar; 
that  said  J .  .  .  .  R .  .  .  .  never  had  any  interest  in  said  premi- 
ses and  never  claimed  any  interest  whatever  in  the  same, 
76 


Form  1706.]  1202  [Chapter  LXXVI. 

except  as  trustee  for  said  corporation,  and  for  the  signers  of 
said  subscription  list  or  agreement;  that  at  said  time  said 
J . . . .   E . . . .   duly  executed  and  delivered  to  said  W . . . . 

&  U . . . .  his  promissory  note  for dollars,  and  duly 

executed  and  delivered  to  said  W....  &U....  a  mortgage 
upon  said  premises  to  secure  said  sum;  that  said  note  and 
mortgage  were  given  to  secure  the  payment  of  the  balance 
of  the  purchase  price  of  S^id  premises,  according  to  the  terms 
of  said  contract  or  option  mentioned  in  paragraph  V  hereof. 

XVIII.  That,  as  plaintiff  is  informed  and  believes,  the 
total  amount  of  the  payments  made  for  said  lands  to  said 

W. . . .  &  U. . . .  was  the  sum  of dollars,  and  the  total 

amount  paid  to  said  W , . . .  Z . . . .  for  his  interest  in  said 

contract  or  option  was    dollars,  making  the  total 

amount  paid  by  all  of  said  defendants  for  said  premises 
dollars. 

XIX.  That,  as  plaintiff  is  informed  and  believes,  at  or 
about  the  time  said  last  payment  was  made  to  said  W. . . .  & 

U. . . .,  to-wit,  on  or  about  the   ....  day  of ,  19. ., 

said  defendants  W .  .  . .  D . . . .  and  H .  . . .  M . . . .  paid  and 

turned  over  to  said  D . . . .  D . . . .  and  D . . . .  M 

dollars  out  of  the  moneys  collected  from  said  subscribers  as 
above  set  forth,  as  the  share  of  said  D  ....  M  ...  .  and  D  .  .  . . 
D . . . .  of  the  illegal  profits  of  said  transaction,  and  pursuant 
to  the  agreement  mentioned  in  paragraph  VI  hereof. 

XX.  That  thereupon  and  in  said  month  of 19.  ., 

said  defendants  W . . . .  D . . .  .  and  H . . . .  M ....  proceeded 
to  perfect  the  organization  of  said  corporation,  the  plaintiff 
herein,  and  had  the  articles  of  incorporation  thereof  drawn 
up  by  their  attorney;  that  said  articles  were  signed  by  said 
W . . . .  D . . . .  and  by  two  of  said  subscribers  at  the  request 
of  said  W. . . .  D . . .  .  and  H .  , . .  M .  .  .  .  and  were  duly 
caused  to  be  recorded  as  required  by  law,  in  the  office  of  the 

register  of  deeds  of county,  on  the  ....  day  of , 

19. .,  and  filed  with  the  secretary  of  state  of  the  state  of 
on  the  ....  day  of 19 . . 

XXI.  That  on  or  about  the  ....  day  of ,  19 ,  . ,  said 

signers  of  the  articles  of  incorporation  met  at  the  office  of  said 
W . . . .  D .  .  . .  in  the  city  of for  the  purpose  of  per- 
fecting the  organization  of  said  plaintiff,  at  which  time  a 
large  part  of  the  subscribers  to  the  stock  of  said  plaintiff, 
or  the  signers  of  said  agreement  were  also  present;  that  the 


Chapter  LXXVL]  1203  [Form  1705. 

minutes  of  said  meeting  had  been  prepared  beforehand  by 
said  attorney  of  said  W .  .  .  .  D . . . .  and  H .  .  .  .  M . . . .  and 
the  method  of  procedure  at  said  meeting  was  directed  by 

said  W D . . .  .   and  H . . . .  M . . . . ;  that  a  contract  of 

subscription,  of  which  the  following  is  a  copy,  was  written 
in  the  minutes  of  said  meeting,  so  prepared  beforehand,  by 
said  attorney,  to-wit  [copy  the  subscription  agreement]. 

XXII.  That  said  list  was  thereupon  signed  by  such  of  the 
persons  as  were  present  of  those  who  had  subscribed  to  the 
j5rst  subscription  list  or  agreement  in  the  same  amount  as 
they  had  subscribed  to  said  first  subscription  list  or  agree- 
ment,  and  amounted  in  the  aggregate  to    dollars; 

that  the  balance  of  said    dollars  subscribed  in  said 

first  list  of  agreement  was  subscribed  at  said  time  on  said 
second  subscription  list  by  said  J. .  . .  E. . . .,  acting  at  the 
request  of  said  W . . . .  D . . . .  and  H . . .  .  M . .  .  .  for  and  in 
behalf  of  such  of  the  subscribers  to  the  said  first  list  or 
agreement  as  were  absent  from  said  meeting;  that  said  de- 
fendants W .  .  . .  D . . . .  and  H . .  .  .  M .  . .  .  and  said  J .  . . . 
E . . . .  were  thereupon  elected  as  directors  of  said  corpora- 
tion, the  plaintifT  herein,  and  constituted  the  board  of  di- 
rectors of  said  corporation;  that  a  resolution  was  then  passed, 
at  the  request  of  said  defendants  W .  .  .  .  D ,  .  .  .  and  H . . . . 
M .  . . . ,  authorizing  and  empowering  said  board  of  directors 
to  purchase  the  premises  hereinbefore  described  at  the  price 

of  not  to  exceed    dollars;  that  said  subscribers  to 

stock  were  not  aware  that  said  premises  had  already  been 

purchased  for  a  cash  payment  of dollars,  as  above  set 

forth,  but  verily  believed  that  the  price  of  the  same  was 

dollars,  of  which dollars  would  have  to  be  paid 

at  once  in  cash.  - 

XXIII.  That  said  stockholders'  meeting  was  then  ad- 
journed and  a  meeting  of  the  board  of  directors,  elected  as 
aforesaid,  and  consisting  of  said  W .  , .  .  D .  .  .  .  and  H . . . . 
M. . . .  and  J. .  . .  E.  . .  .  was  immediately  held;  that  said 
W . . . .  D .  .  . .  was  elected  president,  said  J . . .  .  E , .  .  ,  vice- 
president,  and  said  H . . . .  M . . . .  secretary  and  treasurer,  at 
said  directors'  meeting. 

XXIV.  That  thereupon  and  at  the  request  of  said  W. . . . 
D. . . .,  acting  as  the  president  of  the  plaintiff,  and  of  said 

N . . . .  M acting  as  the  secretary  of  plaintiff,  said  J . . . . 

E. . . .  made  and  executed  to  plaintiff,  and  delivered  to  said 


Form  1705.]  1204  [Chapter  LXXVI. 

W . . . .  D . . . .  and  H . . . .  M . . . . ,  acting  as  such  officers  of 
said  plaintiff,  a  warranty  deed  of  the  said  premises,  wherein 
and  whereby  said  J ....  E ...  .  conveyed  said  premises  to  said 

plaintiff,  subject  to  said  mortgage  of dollars  and  to 

said  mortgage  of dollars;  that  the  consideration  re- 
cited in  said  deed  was  one  dollar  and  other  valuable  consid- 
eration; that  said  J....  E....  received  no  consideration 
whatever  for  said  premises,  or  for  executing  said  deed;  that 
he  did  not  know  what  said  defendants  had  paid  for  said 
premises;  that  said  W. . . .  D . . . .  and  H. . . .  M . . . .  had 
represented  to  him,  and  he  verily  believed  that  the  purchase 
price  demanded  by  said  W. . . .  &  U. . . .  for  the  same  was 

dollars,  and  that  the  said  W . . . .  D . . . .  and  H . . . . 

M . . . .  had  paid dollars  in  cash  for  the  same,  leaving 

the  balance  of dollars  secured  by  mortgages,  as  above 

stated;  that  said  J. . . .  E. . . .  had  taken  said  conveyance 
merely  as  trustee  for  said  corporation  and  for  the  accommo- 
dation of  said  plaintiff,  and  transferred  said  premises  to 
plaintiff  entirely  without  compensation  to  himself. 

XXV.  That  said  defendant  W . .  . .  D . . . . ,  acting  as  the 
secretary  and  treasurer  of  plaintiff,  caused  it  to  appear  by  the 

ledger  and  cash  book  of  plaintiff,  that dollars  in  cash 

had  been  paid  into  the  treasury  of  plaintiff  from  said  sub- 
scribers to  the  capital  stock  of  plaintiff,  and  acting  as 
such  secretary  and  treasurer,  made  false  and  fraudulent  en- 
tries upon  said  cash  book  and  ledger,  and  made  it  appear  by 

such  cash  book  and  ledger  that dollars  in  cash  had 

been  paid  by  plaintiff  for  said  premises,  and  that  said  prem- 
ises had  been  purchased  by  said  board  of  directors  for  plain- 
tiff at  the  price  of dollars  of  which   dollars 

had  been  paid  in  cash,  and  the  balance  of  which  was  repre- 
sented by  mortgages;  that  said  false  and  fraudulent  entries 
were  so  made  by  said  W .  . . .  D . . .  .  for  the  purpose  of  de- 
ceiving the  plaintiff  and  the  stockholders  of  plaintiff,  and 
of  concealing  from  them  that  said  defendants  had  paid  only 

the  sum  of dollars  in  cash  for  said  premises,  and  of 

concealing  the  fact  that  said  defendants  were  making  a 
secret  profit  upon  the  purchase  of  said  premises. 

XXVI.  That  said  defendants  W . .  . .  D .  .  . .  and  H ... . 
M . . . .  falsely  represented  to  said  corporation  and  stock- 
holders thereof,  and  induced  them  to  believe,  and  said  cor- 
poration and  said  stockholders  did  believe,  that  said  prem- 


Chapter  LXXVL]  1205  [Form  1706. 

ises  had  been  purchased  for  said  corporation  at  the  price  of 

dollars,  of  which   dollars  had  been  paid  in 

cash,  and  the  balance  of  which  was  represented  by  mortgages 
on  said  premises. 

XXVII.     That  the  amount  collected  by  said  W 

D and  H . . . .  M . . . .  from  said  subscribers,  inclusive  of 

their  own   subscriptions,   in   carrying  out   said   fraudulent 

scheme,  was  as  above  set  forth,    dollars;  that  the 

amount  paid  to  said  W. . . .  &  U for  said  premises,  was 

as  above  set  forth, dollars;  that  the  amount  paid  to 

said  W. . . .  Z. . . .  for  his  interest  in  said  contract  or  option, 

was  as  above  set  forth, dollars;  that  the  total  amount 

paid  for  said  premises  by  all  of  said  defendants  was 

dollars;  that  the  balance  of  said    dollars,  to-wit, 

dollars,  has  been  unlawfully  converted  by  said  de- 
fendants to  their  own  use,  between  on  or  about  the   .... 

day  of ,  19. .,  and  the  ....  day  of ,  19. .,  as 

plaintiff  is  informed  and  believes,  said  D . . . .   D . . .  .   and 

D . . . .  M . . . .  receiving  as  their  share  thereof dollars, 

of  which dollars  was  paid  out  by  them  as  aforesaid, 

and  said  W . . .  .  D . . . .  and  H . . . .  M . . . .  receiving  as  their 
share  dollars. 

XXVIII.     That  by  reason  of  the  premises,  said  defendants 

are  jointly  indebted  to  plaintiff  in  the  sum  of dollars, 

with  interest  thereon  from  the  ....  day  of ,  19. . 

WHEREFORE  plaintiff  demands  judgment  against  said 

defendants  for  said  sum  of dollars,  with  interest  as 

aforesaid  from  the  ....  day  of ,  19 . .,  and  costs  of  this 

action,  and  such  other  and  further  relief  as  may  be  just. 

1706.  Complaint  in  equitable  action  by  stockholders  on 
behalf  of  corporation  against  fraudulent  pro- 
moters where  corporate  officers  refuse  to  sue. 

[Make  corporation  a  party  defendant  with  the  promoters,  and 
after  alleging  its  corporate  existence,  as  in  the  last  preceding 
forms,  proceed  substantially  as  follows]: 

That  the  plaintiffs  are  all  stockholders  in  said  corporation, 
and  that  all  of  them  [except  A.  .  .  .  B . . . .]  agreed  to  take  the 
stock  which  they  hold  before  the  organization  of  said  cor- 
poration, and  signed  an  agreement  to  that  effect,  hereinafter 
set  forth.     [After  setting  forth  facts  showing  the  obtaining  of 


Form  1707.]  1206  [Chapter  LXXVI. 

subscriptions,  the  organization  of  the  corporation,  and  the 
fraud  practiced  on  the  corporation,  as  in  the  preceding  forms, 
proceed  to  allege  the  reasons  why  the  action  is  not  brought  by 
the  corporation,  as  for  instance] : 

That  the  plaintiffs  first  learned  the  truth  in  regard  to  the 
said  sale  of  land  to  the  corporation,  and  the  fraud  practiced 

by  the  defendants  [promoters]  about ,  19.  .,  and  that 

they  have  in  no  manner  ratified  the  sale  of  said  land  to  the 
corporation  after  knowledge  of  the  facts  of  said  fraud,  nor 
has  said  corporation  ratified  said  sale.  That  this  action  is 
brought  by  the  plaintiffs  and  not  by  the  said  corporation 
because  the  board  of  directors  thereof  is  entirely  controlled 
by  the  said  defendants  [promoters].     That  nevertheless  the 

plaintiffs  on  the  ....  day  of  19.  .,  and  before  this 

action,  demanded  in  writing  of  said  board  of  directors  that 
an  action  be  brought  against  said  promoters  to  protect  the 
interests  of  said  corporation  and  its  stockholders,  and  to 
recover  the  amount  so  fraudulently  obtained  by  the  said 
promoters  [or,  to  rescind  the  sale]  but  that  said  board  of 
directors  refused  to  bring  such  action,  or  any  action  whatever 
against  said  [promoters]. 

[Demand  judgment  in  favor  of  the  corporation  for  the  amount 
of  fraudulent  profits  retained  by  promoters,  or  if  rescission  is 
sought,  demand  judgment  substantially  as  follows]: 

WHEREFORE  the  plaintiffs  demand  judgment  on  behalf 
of  said  corporation,  that  the  aforesaid  contract  of  sale  of 
said  land  to  said  corporation  be  rescinded  and  set  aside,  that 
the  said  corporation  be  adjudged  to  reconvey  to  said  [pro- 
moters] the  said  land,  and  that  the  said  [promoters]  be  ad- 
judged to  repay  to  said  corporation  the  said  sum  of  ...... 

dollars  [amount  of  the  purchase  price]  with  interest  from , 

19.  .,  and  for  such  other  and  further  relief  as  may  be  just 
and  equitable,  with  costs. 

1707.  Complaint  in  action  at  law  by  stockholder  to  re- 
cover his  individual  damages  resulting  from  the 
fraud  of  promoters  see  Franey  v.  Warner,  96 
Wis.  222;  71  N.  W.  81). 

[Set  forth  the  facts  of  the  formation  of  the  corporation,  the 
fraud  practiced  by  the  promoters,  and  the  illicit  profits  received 
by  them,  as  in  the  preceding  forms,  and  continue]: 


Chapter  LXXVI.]  1207  [Form  1707. 

That  this  plaintiff  first  learned  the  truth  in  regard  to  the 
said  sale  of  land  to  said  corporation,  and  the  fraud  practiced 

by  said  defendants,  on  or  about  the   ....   day  of   , 

19 .  . ,  that  on  the day  of ,  19 .  . ,  t^e  plaintiff  made 

written  demand  upon  the  directors  of  said  corporation  that 
they  bring  action  against  said  defendants  to  rescind  said 
sale  or  recover  the  illicit  profits  so  made  by  said  defendants, 
but  that  said  directors  refused  and  still  refuse  to  bring  said 
action. 

That  the  plaintiff,  as  a  stockholder  of  said  corporation,  has 
suffered  damage  resulting  from  the  said  fraudulent  sale  of 
land  to  said  corporation  by  said  defendants,  in  the  sum  of 
dollars. 

WHEREFORE  plaintiff  demands  judgment  against  the 

defendants  for  the  sum  of dollars,  with  interest  from 

,  19.  .,  with  costs. 


CHAPTER  LXXVII. 

COMPLAINTS  IN  ACTIONS  FOR  PERPETUAL 
INJUNCTIONS. 


1708.  To    restrain    unfair    compe- 

tition in  trade  by  imitation 
of  label  or  infringement  of 
trademark,  and  for  dam- 
ages. 

1709.  To    restrain   publication    of 

a  periodical  under  a  name 
fraudulently  imitating  the 
name  of  plaintiff's  period- 
ical. 

1710.  By  purchaser  of  physician's 

good-will,  to  enjoin  his 
continuing  the  practice. 

1711.  To  enjoin- late  partner  from 

continuing  business  after 
dissolution. 

1712.  For  injunction  and  damages 

upon  breach  of  covenant 
by  purchaser  of  secret 
process  of  manufacture, 
not  to  disclose  the  same. 

1713.  To    restrain    negotiation    of 

bill  or  note,  general  form. 

1714.  The  same,  another  form. 

1715.  Complaint  on  a  note,  against 

maker  and  indorser,  and 
seeking  to  reach  collateral 
securities  held  by  indorser. 

1716.  To    obtain    interpleader    in 

equity. 

1717.  To  restrain  repeated  trespass, 

resulting  in  multiplicity 
of  suits. 

1718.  To  restrain  town  officers  from 


1708. 


opening  a  highway  which 
has  been  defectively  laid 
out. 

1719.  To  restrain  prosecutions  at 

law  for  violation  of  a  void 
city  ordinance. 

1720.  To  restrain  the  erection  and 

maintenance  of  an  un- 
authorized telephone  pole 
in  front  of  the  plaintiff's 
store. 

1721.  To    compel    accounting    by 

corporate  officers,  and  re- 
strain them  from  appro- 
priating corporate  moneys. 

1722.  By     taxpayer     to     restrain 

county  officers  from  paying 
an  illegal  claim. 

1723.  By  taxpayer  to  restrain  col- 

lection of  fraudulent  judg- 
ment against  school  dis- 
trict. 

1724.  To  restrain  sheriff  from  sell- 

ing land  on  execution  un- 
der a  judgment  which  has 
been  compromised  and  set- 
tled, but  never  discharged. 

1725.  Against  continuing  in  busi- 

ness after  selling  out.  (Con- 
necticut Practice  Act.) 

1726.  Complaint    for    interpleader 

by  life  insurance  company 
against  two  rival  claim- 
ants of  a  policy. 


To  restrain  unfair  competition  in  trade  by  imita- 
tion of  label  or  infringement  of  trademark,  and 
for  damages. 

I.     That  the  plaintiff  is,  and  for  a  long  time  previous  to  the 
committing  of  the   grievances   hereinafter    mentioned,   had 


Chapter  LXXVIL]  1209  [Form  1708. 

been  the  manufacturer  [or  the  vendor]  of  an  article  [describe 

commodity]  known  as which  he  has  for  ... .  years  last 

past  offered  for  sale  and  sold  [in  packages,  describing  them,  if 
the  defendant's  packages  are  similar],  labelled  with  his  own 
proper  device  and  trademark,  adopted  by  the  plaintiff  for 
that  purpose  in  the  year  19. .,  of  which  the  following  is  a 
copy  [or  is  a  specimen :  copy  of  label,  or  a  specimen  of  same;  or, 
in  a  similar  manner  state  other  trademark]. 

II.  That  by  reason  of  the  long  experience  and  great  care  of 
the  plaintiff  in  his  said  business,  and  the  good  quality  of  said 
[commodity],  the  same  has  become  widely  known  in  the  com- 
munity as  a  valuable  and  useful  article,  and  acquired  a  high 
reputation  as  such,  and  has  commanded  and  still  commands 

an  extensive  sale  at [and  elsewhere],  which  is  and  has 

been  a  source  of  great  profit  to  this  plaintiff. 

III.  That  it  is  known  as  such  article,  to  the  public  and  to 

the  buyers  and  consumers  thereof,  by  the  said  name  of 

and  by  the  plaintiff's  own  proper  device  and  trademark 
aforesaid. 

IV.  That  notwithstanding  the  long  and  quiet  use  and 
enjoym.ent  by  the  plaintiff  of  said  name  and  trademark,  the 
defendant,  well  knowing  the  premises,  but  wilfully  dis- 
regarding the  plaintiff's  rights,  thereafter  and  in  the  year  19. . 
wrongfully  [and  fraudulently]  prepared  and  offered  for  sale, 

and  now  does  offer  for  sale  and  sell,  at and  elsewhere, 

an  article  in  imitation  of  the  plaintiff's  article,  which  [with 
intent  to  deceive  and  defraud  the  public  and  the  buyers  and 
consumers  thereof]  he  has  caused  to  be  put  up  in  similar 
packages,  and  labelled  with  a  precisely  [or  nearly]  similar 
label,  of  which  false  label  the  following  is  a  copy  [or  specimen: 
copy  or  a  specimen  of  the  false  label]. 

V.  That  such  intention  is  calculated  to  deceive  the  pur- 
chasers and  consumers  of  plaintiff's  said  article,  and  actually 
has  and  still  does  mislead  many  of  them  to  buy  the  article  sold 
by  the  defendant,  in  the  belief  that  it  is  the  article  manu- 
factured by  the  plaintiff,  greatly  to  the  diminution  of  the 
said  business  and  profits  of  this  plaintiff. 

VI.  That  the  article  so  put  up  and  sold  by  the  defendant 
in  imitation  of  the  plaintiff's  article  is  of  a  greatly  inferior 
quality  [state  in  what  respects] ;  and  that  by  reason  of  the  prem- 
ises the  general  esteem  and  reputation  of  the  said  article 


Form  1709.]  1210  [Chapter  LXXVII. 

manufactured  by  the  plaintiff  has  been  injured,  greatly  to  the 
diminution  of  the  said  business  and  profits  of  the  plaintiff. 

[VII.  That  before  this  action,  and  on  the  ....  day  of 
,  19. .,  the  plaintiff  requested  the  said  defendant  to  de- 
sist from  his  infringement  of  the  plaintiff's  trademark  as 
aforesaid,  and  to  pay  to  the  plaintiff  what,  upon  a  just 
accounting,  there  would  be  due  him  therefor;  yet  the  defend- 
and  refuses  so  to  do.] 

VIII.  That  by  reason  of  the  premises  the  plaintiff  has 
been  injured,  to  his  damage dollars. 

WHEREFORE  the  plaintiff  demands  judgment  against 
the  defendant:  (1)  That  the  defendant  and  his  servants  and 
agents  be  forever  restrained  from  preparing,  putting  up, 
selling,  or  offering  for  sale  said  imitation  of  the  plaintiff's 

article,  or  any  article  bearing  the  name  of   or  any 

imitation  of  said  name,  or  bearing  said  false  trademark,  or 
any  imitation  of  the  label  or  trademark  of  the  plaintiff. 
(2)  That  the  defendant  account  for  and  pay  over  to  the 
plaintiff  all  the  profits  realized  by  him  upon  sales  of  said 
[commodity],  sold  by  him  with  any  imitation  of  plaintiff's 

trademark.     (3)  For     dollars    damages.     (4)  And 

for  the  costs  of  this  action. 


1709.  To  restrain  publication  of  a  periodical  under  a 
name  fraudulently  imitating  the  name  of  plain- 
tiff's periodical. 

I.     That  he  is  the  proprietor  and  publisher  of  a  newspaper 

[or  magazine,  or  almanac,  or  other  periodical]  at known 

and  distinguished  as  [name  of  the  plaintiff's  publication];  and 
that  as  such  proprietor  he  has  published  the  same  daily  [or, 
monthly,  or  otherwise]  for  ....  years  last  past,  and  that  such 
publication  has  been  made  by  the  plaintiff,  and  those  through 
whom  he  purchased  the  same,  as  the  owners  and  proprietors 
thereof,  since  the  original  establishment  of  the  same  in  the 
year  19. .  under  that  name. 

[Continue  substantially  as  in  preceding  form,  giving  copy  of 
the  headings  or  title-pages,  if  defendant  has  imitated  the  appear- 
ance of  plaintiff's,  and  substituting  "publication"  for  ''com- 
modity" and  "subscribers  and  readers"  for  "consumers,"  etc.] 


Chapter  LXXVIL]  1211  [Forms  1710,  1711. 

1710.  By  purchaser  of  physician's  good-will,  to  enjoin 

his  continuing  the  practice.' 

I.  That  in  the  month  of ,  19 . . ,  the  defendant  being 

a  physician  practicing  in in  the  county  of and 

its  vicinity,  for  and  in  consideration  that  the  plaintiff  would 
purchase  of  him  [his  dwelling-house,  and  lot,  and  office  in  that 
village,  and  the  furniture  thereof,  and]  the  good-will  of  his 

practice,  for  the  sum  of dollars,  the  defendant  agreed 

with  the  plaintiff  that  he  would  not  practice  medicine,  or  in 
any  manner  do  business  as  a  physician,  in  said  county,  at  any 
time  after  the  ....  day  of ,  19 . . 

II.  That  the  plaintiff  accordingly  purchased  from  the  de- 
fendant his  said for  the  price  and  at  the  terms  afore- 
said, and  paid  said  sum  of dollars,  for  the  good-will 

of  said  business. 

III.  That  the  plaintiff  duly  performed  all  the  conditions 
of  said  agreement  on  his  part. 

IV.  That  the  defendant,  in  violation  of  his  said  agree- 
ment, afterwards  returned  to   and  commenced,  and 

still  continues  to  practice  medicine,  and  to  do  business  as  a 
physician  in  said  county. 

WHEREFORE  the  plaintiff  demands:  (1)  That  the  said 
defendant  be  enjoined  from  continuing  so  to  do.  (2)  For 
dollars  damages.     (3)  And  for  the  costs  of  this  action. 

1711.  To  enjoin  late  partner  from  continuing  business 

after  dissolution. 

I.     That  on  the  ....  day  of ,  19 . . ,  the  plaintiff  and 

defendant  being  [or  about  to  become]  partners,  carrying  on 

the  business  of at they  both  executed  under 

their  hands  and  seals,  articles  of  copartnership  for  the  regula- 
tion of  their  said  business;  by  which,  in  consideration  of  the 
premises,  and  of  the  mutual  agreement  thereto,  it  was  among 
other  things  provided  that  in  case  of  the  dissolution  of  the 
partnership  neither  of  them  should  continue  business  in  the 
building  occupied  by  the  firm,  nor  within  one  block  thereof, 

for  the  space  of after  such  dissolution,  without  the 

consent  of  the  other. 

1  Sustained  against  demurrer,  in  335.  See  Form  1207  for  complaint 
Holbrook  v.  "Waters,   9  How.  Pr.      asking  only  damages. 


Form  1712.]  1212  [Chapter  LXXVII. 

II.  That  on  the  ....  day  of ,  19. .,  said  partner- 
ship was  dissolved  by  mutual  consent. 

III.  That  the  defendant  is  now,  and  within after 

said  dissolution,   carrying  on  such  business  at  No , 

Street,  in  said  city,  being  within  one  block  of  the  same 

premises  occupied  by  the  late  firm,  and  declares  his  intention 
to  persist  in  so  doing.  That  he  has  put  placards  on  the  door 
announcing  his  establishment  in  said  business  there,  and  has 
attempted  to  advertise  the  same  facts  in  the  public  papers; 
and  is  employing  servants  on  the  premises  in  the  said 
business. 

IV.  That  the  plaintiff  has  not  consented  to  these  pro- 
ceedings by  the  defendant,  but  has  objected  thereto,  and 
requested  him  to  desist  therefrom,  which  he  refuses  to  do. 

V.  That  the  plaintiff  has  not  continued  in  business  on  the 
said  premises,  nor  within  one  block  thereof,  but  is  endeavor- 
ing to  establish  himself  in  said  business  at  No in 

Street;  but  is  unable  to  do  so  by  reason  of  the  defendant's 
acts  aforesaid,  and  the  injury  to  the  plaintiff  by  the  acts  com- 
plained of  cannot  be  fully  compensated  in  damages. 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
defendant,  his  agents  and  servants  be  restrained  by  injunc- 
tion from  carrying  on,  or  in  any  wise  engaging  in  said  business 

in  the  building  known  as  No in Street,  in  the 

said  city,  or  within  one  block  thereof,  for  the  term  of 

from  the  ....  day  of ,  19. . ;  and,  also,  from  advertis- 
ing or  announcing  in  any  manner  his  location  in  business 
there  during  such  term,  or  putting  or  keeping  up  any  signs 
or  placards  for  that  purpose,  and  that  the  plaintiff  recover 
his  costs  of  this  action. 

1712.  For  injunction  and  damages  upon  breach  of  cove- 
nant by  purchaser  of  secret  process  of  manu- 
facture, not  to  disclose  the  same  (sustained 
against  demurrer  in  Hammer  v  Barnes,  26  How. 
Pr.  174). 

I.  That  the  plaintiff  is  by  trade  a  brewer,  and  teacher  of 
the  art  of  brewing  in  the  city  of  New  York. 

II.  That  by  many  years  of  labor  and  expending  large 
sums  of  money  in  experiments,  he  became  possessed  of  a 
knowledge  of  brewing  ale  by  a  new  and  improved  process. 


Chapter  LXXVIL]  1213         -  [Form  1712. 

which  was  and  is  an  important  secret  of  his  trade,  whereby 
the  ale  as  so  manufactured  was  of  a  better  quality  than  that 
manufactured  by  the  old  and  generally  used  process,  and 
whereby  a  great  saving  of  m.alt  was  effected;  and  the  keeping 
qualities  of  ale  so  manufactured  by  plaintiff's  process,  were 
better  than  that  manufactured  or  brewed  by  the  old  process. 
And  that  said  knowledge  or  discovery  was  employed  and 
used  by  this  plaintiff  in  manufacturing,  at  his  brewery  in 

an  ale  greatly  liked  and  sought  after  by  the  public; 

and  the  said  knowledge  or  discovery  was  of  great  value  to 
him  in  his  said  brewing  business,  and  of  great  value  to  any 
one  engaged  in  the  brewing  business,  to  whom  he  should  im- 
part it;  and  the  plaintiff  made  it  his  principal  avocation  for 
several  years  past  to  communicate  his  improved  process  of 
brewing  to  other  brewers  for  a  consideration,  whereby  he 
acquired  great  gains,  a  fact  well  known  to  the  defendants. 

III.  That  his  said  improved  process  is  not,  as  he  is 
advised  and  believes,  the  subject  of  a  patent  under  the  patent 
laws  of  the  United  States,  it  not  being  of  such  a  nature  as 
required  by  the  law  to  be  patentable;  that  therefore  he  never 
obtained  a  patent-right  on  said  process,  although  he  did 
obtain  several  patents  for  brewing-utensils;  consequently  he 
has  no  protection  against  the  acts  of  the  defendants  except 
in  the  preventive  remedy  of  this  court. 

IV.  That,  as  he  is  advised  and  believes,  his  said  process  is 
not  a  matter  which  can  be  readily  and  specifically  set  forth  in 
a  written  description  thereof  in  such  full,  clear,  and  exact 
terms,  avoiding  unnecessary  prolixity,  as  that  the  manner 
and  process  of  making,  using,  and  compounding  the  same 
could  be  readily  understood  by  any  person  skilled  in  the  art, 
so  that  such  person  thereby  would  be  enabled  to  make, 
construct,  compound,  and  use  the  same. 

V.  That  on  or  about  the  ....  day  of ,  19 . .,  the 

said  defendants  S. . . .  S.  . . .  and  A. . . .  B.  . . .,  composing 
the  firm  of  A. .  ,  .  B . . . .  &  Co.,  and  who  were  engaged  in  the 
business  of  brewing  in applied  to  the  plaintiff  to  com- 
municate said  process  to  them,  as  they  were  desirous  of 
adopting  the  same,  for  the  sole  purpose  of  improving  the 
quality  of  the  ale  to  be  thereafter  manufactured  by  the 

defendants  in  their  brewery  in    which  process  the 

plaintiff  was  willing  to  communicate  to  them  for  a  moderate 
sum,  which  would  be  considered  nominal  between  the  parties 


Form  1712.]  1214  [Chapter  LXXVII. 

when  compared  with  the  vahie  of  said  improvements,  pro- 
vided the  said  A. ,  .  .  B.  .  .  .  &  Co.  would  bind  themselves 
not  to  communicate  the  same,  or  any  part  thereof,  either 
directly  or  indirectly,  to  any  other  person  or  persons,  except 

the  defendant  C N .  . . . ;  and  provided,  also,  that  they, 

said  defendants,  would  not  afford  facilities,  by  neglect,  care- 
lessness, or  otherwise,  so  that  the  said  process,  or  any  part 
thereof,  would  be  discovered  by  any  other  person  or  persons; 
and  provided,  further,  that  the  said  defendant  C . . . .  N . . . . 
should  make  no  other  use  whatever  of  the  said  process,  or  any 
part  thereof,  but  only  for  the  benefit  of  the  said  A.  . .  .  B  . . . . 
&  Co.,  by  being  used  in  their  brewery  described;  and  pro- 
vided, also,  that  they,  the  said  defendants,  would  well  and 
truly  keep  the  covenants  and  stipulations  in  the  agreement 
and  bond  hereinafter  set  forth,  agreed  to  be  preserved  and 
kept,  it  being  a  further  and  tacit  stipulation  between  the 
parties  that  the  plaintiff  might  be  at  liberty  to  refer  to  the 
said  A,  .  .  .  B.  .  .  .  &  Co.,  as  a  reference  to  substantiate  the 
value  of  his  said  improvement. 

VI.  That  thereupon,  and  on  said  day,  the  plaintiff  and  the 
said  defendants  S.  . . .  S. . . .  and  A.  . .  .  B.  . .  .,  composing 
said  firm  as  aforesaid,  entered  into  the  agreement,  of  which 
the  following  is  a  copy  [copn  of  agreement]. 

VII.  That  in  and  by  said  agreement,  the  said  S ....  S ... . 
and  A...,  B....  accepted  all  and  singular  the  conditions 
aforesaid;  and,  as  additional  security,  executed  and  delivered 
to  this  plaintiff  their  bond,  of  which  the  following  is  a  copy 
[copy  of  bond  for  performance  of  agreement].  It  being,  how- 
ever, expressly  understood  by  and  between  the  parties,  and 
so  stipulated  therein,  that  they,  said  A. .  . .  B. .  .  .  &  Co., 
should  be  bound  and  held  unto  the  plaintiff  as  well  by  and 
under  the  covenants  in  the  said  agreement  contained  as  by 
and  under  the  penalty  and  condition  of  the  said  bond. 

VIII.  That  the  plaintiff,  in  fulfillment  and  compliance 
with  the  conditions  and  covenants  in  said  agreement  con- 
tained to  be  done  and  fulfilled  on  his  part,  did  therefore  com- 
municate to  said  S .  . . .  S . . .  .  his  process  of  brewing  as 
covenanted  by  him  in  said  agreement,  and  gave  him  all 
necessary  explanation  in  regard  thereto;  whereby  the  firm  of 
A.  .  .  .  B .  .  .  .  &  Co.  were  entitled  to,  and  did,  brew  by  means 

of  said  process  of  the  plaintiff,  at  their  said  brewery  in 

ale  of  a  far  superior  quality  to  that  which  they  were  brewing 


Chapter  LXXVII.]  1215  [Form  1712. 

previously,  by  the  old  process,  and  thereby  they  saved  large 
quantities  of  malt;  to  their  great  advantage,  reputation,  and 
profit,  and  they  still  continue  to  manufacture  a]e  under  said 
process.  And  the  plaintiff  further  saith,  that  he  in  all  things 
duly  performed  the  conditions  on  his  part. 

IX.  That  the  said  defendants  S.  .  .  .  S.  . . .  and  A.  . . . 
B. . . .,  composing  said  firm  as  aforesaid,  and  the  defendant 
C .  . . .  N .  . . .  have,  in  violation  of  the  express  covenants  and 
conditions  in  said  agreement  contained,  made  by  the  said  de- 
fendants A.  ...  B ....  &  Co.,  since  the  execution  and  delivery 
of  said  agreement,  communicated  said  process,  knowledge, 
and  secret  of  trade  given  to  them  as  aforesaid  by  the  plaintiff, 
in  the  brewing  of  ale,  to  divers  parties  and  persons  engaged  in 
brewing  ales,  to-wit  [naming  them]  and  other  persons;  and 
have  afTorded  said  several  and  other  persons,  by  their  neglect, 
carelessness,  and  otherwise,  facilities  in  discovering  said 
plaintiff's  process,  and  certain  parts  thereof;  so  that  the  said 
several  firms  above  named,  and  others,  have  been  enabled, 
under  and  by  means  of  such  communication  and  knowledge, 
and  by  reason  of  said  carelessness,  neglect,  and  facilities 
otherwise  given,  to  manufacture,  and  are  still  manufacturing, 
large  quantities  of  ale  by  using  the  said  improvements  of  the 
plaintiff  in  their  brewings,  to  the  great  advantage,  profit,  and 
reputation  of  said  firms,  and  to  the  detriment  and  dam.age  of 
the  plaintiff;  and  thereby  have  enabled  the  said  several 
persons  and  firms  to  bring  into  market  and  sell  a  quantity  of 
ale  superior  to  that  brewed  by  them  by  the  old  process,  and 
similar  to  that  of  the  plaintiff;  and  thereby  have  interfered, 
indirectly  and  directly,  with  the  ale  trade  of  the  plaintiff. 

X.  That  the  said  defendants  have  communicated  said 
knowledge  and  secret  of  trade  in  regard  to  the  plaintiff's  im- 
proved process  of  brewing  ale  to  said  several  firms,  and  to 
other  persons,  and  each  thereof,  for  and  in  consideration  of 
certain  sums  of  money  paid  to  and  received  by  the  defendants 
A ;  .  . .  B  .  .  . .  and  S ....  S ...  .  from  said  firms  and  from  other 
persons  respectively;  and  also  for  and  in  consideration  of 
certain  promises  and  inducements  made  and  held  out  to  the 
sai'd  A .  .  .  .  B . . .  .  and  S . .  . .  S .  . . .  by  said  several  named 
persons  and  others,  and  by  each  of  them. 

XI.  That  although  it  was  definitely  and  distinctly  under- 
stood that  the  said  defendants  should  not,  in  any  way,  in- 
terfere with  his,  the  plaintiff's  rights  and  business  as  a  teacher 


Form  1712.]  1216  [Chapter  LXXVlf. 

of  brewing,  yet,  in  fraud  of  the  rights  of  the  plaintiff,  they, 

the  defendants,  S . . . .  S . . . .  and  A . . . .  B as  well  as  the 

said  defendant  G. . . .  N. . , .,  who  has  become  possessed  of 
said  knowledge  as  manager  of  A. . . .  B  . . . .  &  Co.,  under  the 
said  agreement,  are  ready  and  willing  and  offer  to  instruct 
and  inform  any  and  all  the  brewers  that  they  may  think 
proper  to,  in  and  of  the  plaintiff's  said  improved  process  in 
the  brewing  of  ale,  for  sums  of  money  far  less  than  the  sum 
generally  charged  by  the  plaintiff  for  communicating  his 
process,  and  thus  underselling  him.  That  they  have  held 
themselves  out  to  the  world  as  ready  and  willing  so  to  do, 
and  thereby  have  seriously  interfered  with  the  avocation  of 
the  plaintiff  as  a  teacher  of  brewing. 

XII.  That  prior  and  subsequently  to  the  execution  and 
delivery  of  said  agreement,  the  said  [persons  named  in  para- 
graph IX]  were  in  negotiation  with  this  plaintiff  on  the 
subject  of  the  plaintiff's  communicating  to  them  his  process 
of  brewing.  That  said  negotiations  had,  as  the  plaintiff 
believes,  progressed  to  such  a  point  as  that  the  said  several 
parties  would  have  acceded  to  this  plaintiff's  terms  in  com- 
municating to  them,  and  each  of  them,  his  said  process;  but 
that  while  negotiations  were  pending  between  this  plaintiff 
and  said  several  parties,  the  said  several  parties  obtained, 
and  the  said  defendants  secretly,  and  without  plaintiff's 
consent,  and  in  fraud  of  his  rights,  communicated  to  them 
the  plaintiff's  process  of  brewing  ale,  in  plain  violation  of  the 
conditions  of  said  bond  and  of  the  covenants  in  said  agree- 
ment; and  said  several  parties,  each  and  all  of  them,  there- 
after declined  and  refused  to  purchase  said  process  of  the 
plaintiff;  and  this  plaintiff  verily  believes  that  the  said  several 
parties  and  firms  would  have  been  willing  to  have  given  the 

sum  of dollars,  or  a  large  sum  of  money,  each,  to  the 

plaintiff  for  such  of  his  instructions  in  his  said  improved 
process  of  brewing  ale,  if  the  same  had  not  been  obtained 
from  the  said  defendants  A . . . .  B . . . .  &  Co. 

XIII.  That  the  plaintiff,  in  all  the  communications  which 
he  has  made  of  said  process  to  others,  has  done  it  for  a  valu- 
able consideration,  and  also  under  express  stipulation  to  pre- 
serve the  secret  on  the  part  of  those  to  ^^  hom  it  has  been 
communicated,  similar  in  terms  and  effect  to  the  contract  of 
the  said  A.  . . .  B .  .  . .  &  Co.,  so  that  the  plaintiff  has  main- 
tained the  value  of  his  said  process,  until  the  wrongful  acts 


Chapter  LXXVIL]  1217  [Form  1712- 

of  the  said  defendants,  by  preserving  it  from  the  knowledge 
of  the  brewing  trade,  except  where  he  communicated  it  for 
value  received.  But  now,  by  the  wrongful  acts  of  the  said 
defendants,  the  said  secret  processes  have  been  disclosed  to 
so  many  who  are  not  bound  by  any  contract  with  the  plaintiff 
to  refrain  from  disclosing  the  same,  that  its  value  as  a  secret 
is  very  much  diminished,  and  will  be  still  further  diminished 
unless  the  said  defendants,  and  each  of  them  is  restrained 
from  further  imparting  said  secret  to  others.  That  the 
amount  of  such  injury  cannot  be  estimated  in  money,  nor 
can  it  be  compensated  directly,  sa  e  by  the  preventive 
remedy  of  this  court. 

XIV.  The  plaintiff  further  shows  that  he  had  also,  at  the 
time  of  making  said  agreement,  and  down  to  the  time  of  the 
violation  thereof  by  the  defendants  A. .  . .  B. . . .  &  Co.,  in 
addition  to  his  occupation  of  teaching  brewers,  a  large  and 

profitable  interest  in  a  business  at   in  brewing  and 

selling  ale.  That  one  great  motive  and  object  of  the  coven- 
ants and  stipulations  on  the  part  of  the  defendants  A. . . . 
B . . . .  &  Co.,  in  the  said  agreement  and  bond  contained,  was 
that  they,  the  said  A .  . .  .  B .  . . .  &  Co.  should  not  impart 
said  improvements  to  other  brewers,  who  thereby  would  be 

enabled  to  bring  into  market  in aforesaid,  and  in  the 

other  parts  of  the  United  States,  an  ale  superior  to  that 
brewed  by  them  under  the  old  process,  similar  in  quality  to 
that  brewed  by  the  plaintiff;  and  therefore  it  was  provided  in 
and  by  said  agreement,  that  the  said  A.  . . .  B. .  . .  &  Co. 
should  not  in  any  way  injure  or  interfere  with  the  ale  trade 
of  the  plaintiff,  or  to  offer  or  to  sell,  directly  or  indirectly,  ale 
or  any  malt  liquor  to  any  person  or  persons  who  had  been  fur- 
nished by  this  plaintiff  with  said  ale.  That  by  reason  of  said 
acts  and  doings  of  the  defendants  in  the  premises,  the 
interests  in  the  said  trade  and  business  of  the  plaintiff  stands 
in  danger  of  being  greatly  injured  and  reduced  in  amount, 
and  interfered  with  by  the  aforesaid  violation  of  said  agree- 
ment by  the  defendants  A. . . .  B.  . .  ,  &  Co.,  in  this,  to-wit: 
that  the  said  [persons  named  in  paragraph  IX]  and  the  other 
persons  to  whom  the  defendants  have  communicated  the 
process,  have  already  injured  and  interfered  with,  and  will 
interfere  with  the  plaintiff's  said  business  and  trade,  and  his 
occupation  as  a  teacher,  in  offering  to  sell,  and  in  selling  at 
lower  prices  and  on  easier  terms  than  those  of  the  plaintiff,  ale 
77 


Form  1712.]  1218  [Chapter  LXXVII. 

manufactured  under  plaintiff's  said  improved  process,  to  his 
customers,  and  those  he  had  been  in  the  habit  of  supplying 
with  said  ale,  which  act  and  doings  the  said  A .  .  . .  B .  . . .  & 
Co.,  under  their  said  agreement,  were  especially  restricted 
from  doing,  and  which  several  acts  and  doings  have  a  tend- 
ency to,  and  will  occasion  irreparable  injury  to  this  plaintiff, 
which  cannot  be  estimated  directly,  and  is  not  susceptible 
of  exact  proof,  but  which  if  allowed  to  continue  pending  this 
litigation,  will  render  ineffectual  any  judgment  the  plaintiff 
may  obtain  in  this  action. 

XV.  And  the  plaintiff  further  shows,  that  the  said  defend- 
ants A. . . .  B .  .  .  .  &  Co.,  and  each  of  them,  have  not  suffi- 
cient responsibility  to  respond  to  the  plaintiff,  as  he  believes, 
even  for  the  amount  of  damages  provided  to  be  paid  in  and 
by  the  terms  of  said  bond;  and  he  believes  that  he  will  be 
wholly  without  any  pecuniary  remedy  for  any  damages 
sustained  by  the  breach  of  said  covenants,  unless  they  are 
enjoined  by  the  court. 

XVI.  That  by  the  aforesaid  violation  of  the  said  agree- 
ment by  the  defendants  S .  , . .  S . .  .  .  and  A .  .  . .  B . . .  .  the 
plaintiff  has  been  directly  damaged  and  injured  in  a  great 

amount,  to-wit, dollars,  in  addition  to  the  said 

dollars;  which  last  sum  he  claims  due  him  from  them  by 
reason  of  the  breach  of  the  conditions  of  said  bond. 

XVII.  That  for  the  purpose  of  the  relief  by  injunction 
hereinafter  prayed  for,  the  plaintiff  makes  the  said  C . , . . 
N . . . .  a  party  defendant  in  this  action  for  that  purpose  and 
view  only;  and  the  plaintiff  avers  that  the  said  C.  .  .  .  N. . .  . 
well  knew  of  the  agreement  and  covenants,  and  bond  afore- 
said, and  its  and  their  various  stipulations  at  the  time  of  the 
imparting  to  him  of  the  process  referred  to  in  said  agreement, 
and  of  the  violation  thereof  by  the  said  defendants;  and  he 
well  knew  that  by  the  said  agreements  and  covenants,  the 
said  A ....  B ....  &  Co.  bound  themselves  unto  this  plaintiff, 
and  made  themselves  responsible  to  him,  for  the  acts,  omis- 
sions, and  carelessness  of  the  said  C . . . .  N .  .  .  .  in  the 
premises,  and  that  the  said  C .  .  .  .  N . . . .  as  agent  and 
manager  of  the  brewery  of  A.  . . .  B .  .  .  .  &  Co.  participated 
with  the  other  said  defendants  in  the  said  violation. 

WHEREFORE  the  plaintiff  prays  judgment:  (1) 
Against  the  said  defendants  S .  . .  .  S . . . .  and  A .  . .  .  B .  . . . 
for  the  amount  of  liquidated  damages  provided  to  be  paid  in 


Chapter  LXXVII.]  1219  [Form  1713 

and  by  the  said  bond,  to-wit,  the  sum  of   dollars. 

(2)  The  further  and  additional  sum  of    dollars  as 

additional  damages  sustained  by  him  by  reason  of  the  viola- 
tion of  said  agreement  by  them,  over  and  above  the  damages 
in  said  bond  provided  for.  (3)  That  the  said  defendants 
S....  S....,  A....  B....  and  C . . . .  N . . . .  be  forever 
enjoined  and  restrained  from  communicating  in  any  manner, 
either  directly  or  indirectly,  now  or  at  any  time  hereafter,  to 
any  person  or  persons,  any  knowledge  or  information  in 
relation  to  or  concerning  the  plaintiff's  said  improved  process 
of  brewing  ale,  which  was  imparted  to  said  S . . .  .   S . .  . . 

under  said  agreement  of   ,  19. .,  by  the  plaintiff,  so 

that  the  said  process  of  brewing,  or  any  part  thereof,  shall  be 
discovered  by  any  person  or  persons  whomsoever.  And, 
also,  in  the  mean  time,  until  said  judgment  enjoining  and 
restraining  the  said  defendants,  and  each  of  them,  from  the 
acts  aforesaid,  until  the  further  order  of  this  court.  (4) 
That  the  said  defendants  A .  .  .  .  B .  . . .  and  S .  . . .  S . . .  .  in 
addition  to  paying  him  the  liquidated  damages  provided  to 
be  paid  to  him  in  and  by  said  agreement,  may  also  be 
adjudged  and  decreed  to  pay  to  him,  the  plaintiff,  such 
additional  damages  as  he  may  have  sustained  by  reason  of 
such  other  breaches  of  the  covenants  in  this  action  as  may 

not  be  included  in  said  breach,  calling  for  said dollars. 

(5)  That  the  said  two  named  defendants,  and  each  of  them, 
may  be  adjudged  and  decreed  to  be  the  trustees  of  this 
plaintiff,  for  the  moneys  received  by  them  from  said  several 
parties,  and  from  others,  for  said  instructions,  and  to  account 
to  him,  the  plaintiff,  therefor;  and  until  such  accounting, 
that  he,  this  plaintiff,  may  have  an  order  for  injunction  and 
receiver  in  this  action.  (6)  And  he  further  prays  for  such 
other  and  further  relief  in  the  premises  against  the  two 
defendants  A .  .  .  .  B . .  .  .  and  S . . . .  S . . . .  as  may  be  just, 
and  that  he  may  have  judgment  thereon,  with  costs  of  suit. 

1713.    To  restrain  negotiation  of  bill  or  note,  general 
form. 

[Allege  making  of  note  for  specified  object,  and  its  failure^ 
e.  g.,  as  in  Form  1250.] 

II.  That  the  defendant  still  retains  the  said  note  in  his 
possession;  and  though,  on  the  ....  day  of ,  19. .,  the 


Forms  1714,  1715.]  1220  [Chapter  LXXVII. 

plaintiff  requested  him  to  deliver  it  up,  he  refused  so  to  do. 
WHEREFORE  the  plaintiff  demands  judgment:  (1)  That 
the  defendant  be  enjoined  from  negotiating,  transferring,  or 
enforcing  the  same.  (2)  That  it  be  delivered  up  and  can- 
celled.    (3)    And  for  the  costs  of  this  action. 

1714.  The  same,  another  fonn. 

I.  That  on  the  ....  day  of ,  19 .  ,,  he  made  and 

delivered  to  the  defendant  a  promissory  note  in  the  words 
and  figures  following  [insert  copy  of  note]. 

II.  That  the  said  note  was  given  as  the  purchase  price  of 
a  pretended  patent  right  for  an  article  designated  as  [name 
article],  and  that  said  defendant  represented  to  plaintiff 
that  he  had  a  valid  patent  right  for  said  article,  when  in 
fact  said  patent  then  was  and  now  is  void  and  of  no  value 
whatever;  but  that  plaintiff,  relying  upon  said  representa- 
tions of  defendant,  was  induced  to  make  and  deliver  to  him 
said  note,  in  payment  for  the  said  patent  right,  and  has  re- 
ceived no  consideration  of  any  kind  therefor. 

III.  Upon  information  and  belief,  that  said  defendant 
still  holds  said  note,  and  is  about  to  transfer  said  note  to  an 
innocent  purchaser  for  value,  in  order  to  prevent  the  plaintiff 
from  making  a  defense  to  the  same. 

IV.  The  plaintiff  now  offers  to  return  and  reconvey  said 
pretended  patent  right  to  defendant. 

WHEREFORE,  etc. 

1715.  Complaint  on  a  note,  against  maker  and  indorser, 

and  seeking  to  reach  collateral  securities  held  by 
indorser  (from  report  of  the  New  York  Com- 
missioners of  the  Code,  p.  123). 

I.  That  on  the  ....  day  of ,  19. .,  at the 

defendant  [maker]  for  the  purpose  of  inducing  the  plaintiff 
to  sell  him  certain  goods,  agreed  to  give  him,  in  payment 
therefor,  the  said  defendant's  promissory  note,  indorsed 
by  the  defendant  [indorser]  and  represented  to  the  plaintiff 
that  the  said  [indorser]  w^ould  be  adequately  indemnified, 
by  collateral  security  for  his  indorsement. 

II.  That  the  plaintiff  was  thereby  induced  to  sell  and 
deliver  to  the  said  [maker]  certain  goods,  of  the  value  of 
dollars. 


Chapter  LXXVIL]  1221  [Form  1716. 

III.  That  on  the day  of ,  19..,  at in 

consideration  thereof,  the  said  [maker]  by  his  promissory 
note,  promised  to  pay  to  the  order  of  the  said  [indorser] 
dollars  ....  months  [or  days]  after  said  date. 

IV.  That  the  said  [indorser]  indorsed  the  same  to  the 
plaintiff. 

V.  That  on  the  ....  day  of ,  19.  .,  the  same  was 

presented  to  the  said  [maker]  for  payment,  but  was  not  paid. 

VI.  That  due  notice  thereof  was  given  to  said  [indorser]. 

VII.  That  the  same  has  not  yet  been  paid. 

VIII.  That  the  said  [maker]  when  he  procured  the  said 
indorsement  from  the  said  [indorser]  lodged  with  him  six 

promissory  notes,  for  the  aggregate  sum  of dollars, 

made  by  one  M . . . .  N . . .  .  and  indorsed  by  the  said  de- 
fendant [maker]  as  security  for  such  indorsement. 

IX.  That  the  said  defendant  [maker]  is  endeavoring  to 
withdraw  the  said  notes  from  the  said  [indorser]  to  prevent 
their  application  in  payment  of  the  demand  of  the  plaintiff 
on   the   said   indorsement. 

X.  That  the  plaintiff  has  requested  the  said  [indorser]  to 
apply  the  said  notes  to  the  payment  of  the  plaintiff's  said 
claim,  but  he  refuses  to  do  so. 

WHEREFOREtheplaintiff  demands  judgment:   (1)   For 

dollars,  with  interest  from  the  ....  day  of , 

19. .  (2)  That  the  notes  placed  in  the  hands  of  the  said  [m- 
dorser]  as  security,  be  applied  to  the  payment  of  the  said  sum. 
(3)  That  the  defendants  be  restrained  by  injunction  from 
disposing  of  the  said  notes  to  any  person  other  than  the 
plaintiff. 

1716.    To  obtain  interpleader  in  equity.^ 

I.  That  before  the  making  of  the  claim  hereafter  men- 
tioned one  M . . . .  N . . . .  deposited  with  the  plaintiff 
[describe  the  property]  for  [safe-keeping]. 


*The  ancient  action  of  inter-  Wis.  64;  53  N.  W.  21.  The  provi- 
pleader  still  exists  but  is  not  en-  sions  of  most  of  the  codes,  which 
couraged  and  is  only  to  be  brought  allow  one  who  is  sued  to  bring  the 
in  cases  where  the  plaintiff  can  not  fund  into  court  nd  cause  the  rival 
otherwise  exonerate  himself  from  claimant  to  be  interpleaded,  gen- 
liability.  McDonald  v.  Allen,  27  erally  take  the  place  of  the  action 
Wis.  108;  Hinckley  v.  Pfester,  83  of  interpleader. 


Form  1717.]  1222  [Chapter  LXXVII. 

II.  That  the  defendant  W X. . . .  claims  the  same 

[under  an  alleged  assignment  thereof  to  him  from  the  said 
M....    N....] 

III.  That  the  defendant  Y....  Z,...  also  claims  the 
same  [under  an  order  of  the  said  M . . . .  N . . . .  transferring 
the  same  to  him]. 

IV.  That  the  plaintiff  is  ignorant  of  the  respective  rights 
of  the  defendants.' 

V.  That  he  has  no  claim  upon  the  said  property,  and  is 
ready  and  willing  to  deliver  it  to  such  persons  as  the  court 
shall  direct. 

VI.  That  this  action  is  not  brought  by  collusion  with 
either  of  the  defendants. 

WHEREFORE  the  plaintiff  demands  judgment:  (1)  That 
the  defendants  be  restrained,  by  injunction,  from  taking  any 
proceedings  against  the  plaintiff  in  relation  thereto.  (2) 
That  they  be  required  to  interplead  together  concerning 
their  claims  to  the  said  property.  (3)  [That  some  person 
be  authorized  to  receive  the  said  property  pending  such 
litigation.]  (4)  That  upon  delivering  the  same  to  such 
[person]  the  plaintiff  be  discharged  from  all  liability  to  either 
of  the  defendants  in  relation  thereto.  (5)  And  that  the 
plaintiff's  costs  be  paid  out  of  the  same. 

1717.  To  restrain  repeated  trespass,  resulting  in  multi- 
plicity of  suits  (adapted  from  complaint  sus- 
tained in  Miller  v.  Hoeschler,  121  Wis.  558;  99 
N.  W.  228). 

I.  That  at  and  for  many  years  prior  to  the  times  herein- 
after stated,  the  plaintiff  was  and  still  is  the  owner  and  in 
possession  of  the  following  described  parcel  of  land  [describe 
same],  and  has  maintained,  and  still  does  maintain  a  dwell- 
ing-house upon  the  said  lands,  standing  within  ....  feet  of 
the  west  boundary  line  thereof. 

II.  That  some  time  in  the  month  of ,  19.  .,  the  de- 
fendant, without  the  consent  of  the  plaintiff,  forcibly  entered 
upon  the  said  parcel  of  land,  and  constructed  a  fence  along 
the  entire  east  side  of  said  parcel  and  within  two  feet  of  the 
plaintiff's  said  dwelling  house,  and  thereby  cut  off  from  the 
plaintiff's  said  premises  a  strip  of  land  ....  feet  in  width, 
comprising  a  part  of  his  door-yard,  and  also  cut  off  the  plain- 


Chapter  LXXVIL]  1223  [Form  1718. 

tiff  from  egress  from  his  said  premises  to Street,  a 

pubhc  highway  in  said  city,  and  entirely  excluded  the  plain- 
tiff from  the  use  of  said  strip  of  land;  that  the  plaintiff,  im- 
mediately removed  the  said  fence  so  constructed  by  the 
defendant  [if  the  defendant  reconstructed  the  fence  and  com- 
mitted further  trespasses,  set  them  forth]. 

III.  That  the  said  defendant  threatens  and  asserts  that 
he  will  reconstruct  said  fence  at  the  place  aforesaid  as  often  as 
the  plaintiff  removes  the  same,  and  will  construct  a  building 
partially  upon  the  said  strip  of  land,  and  thus  permanently 
deprive  the  plaintiff  of  the  use  and  enjoyment  thereof,  and 
the  plaintiff  fears  that  the  said  defendant  will  carry  out  his 
said  threats  unless  restrained  by  the  judgment  of  this  court, 
and  that  if  the  defendant  does  continue  said  trespass  he  will 
put  the  plaintiff  to  irreparable  injury,  and  will  harass,  vex 
and  annoy  the  plaintiff,  and  will  put  him  to  the  necessity  of 
bringing  a  multiplicity  of  actions  to  protect  his  rights. 

WHEREFORE  plaintiff  demands  judgment  that  the  said 
defendant,  his  agents  and  attorneys,  and  all  persons  claim- 
ing by  or  under  him  subsequent  to  the  filing  of  a  notice  of  the 
pendency  of  this  action,  be  perpetually  enjoined,  and  re- 
strained from  taking  possession  of  or  attempting  to  take 
possession  of  the  said  strip  of  land,  and  from  placing  any 
obstruction  thereon,  or  in  any  manner  interfering  with  the 
use  and  occupation  thereof  by  the  plaintiff;  and  that  the 
plaintiff  have  such  other  and  further  relief  as  may  be  equit- 
able, together  with  the  costs  of  this  action. 

1718.  To  restrain  town  ofRcers  from  opening  a  highway 
which  has  been  defectively  laid  out  (adapted 
from  the  complaint  sustained  in  Ruhland  v. 
Jones,  55  Wis.  673;  13  N.  W.  689). 

I.  That  on  and  prior  to  the  ....  day  of ,  19. ., 

the  plaintiff  was  and  still  is  the  owner  and  in  possession  of 
the  following  described  land  [describe  the  land]. 

II.  That  on  the  ....  day  of ,  19.  .,  a  petition  was 

presented  to  the  supervisors  of  the  said  town  of   , 

signed  by  more  than  six  freeholders  of  the  said  town,  praying 
that  a  highway  be  laid  out  as  follows  [describe  the  proposed 
highway],  which  said  proposed  highway  would,  if  laid  out, 
run  through  and  across  the  said  land  of  the  plaintiff,  as  well 


Form  1718.]  1224  [Chapter  LXXVII. 

as  several  parcels  of  land  in  said  town  owned  and  possessed 
by  C...  D....,E....  F....  andG....  H.  .  .  .,  des  ribed 
as  [describe  each  parcel,  giving  the  ownership  thereof.] 

III.  That  upon  the  filing  of  said  petition,  the  supervisors 
of  said  town  caused  notice  to  be  given  that  they  would  meet 

on  the  ....  day  of ,  19 .  . ,  at o'clock  in  the  .... 

noon,  at to  decide  upon  said  location;  that  at  the 

time  and  place  so  fixed  the  said  supervisors  met,  and  ad- 
journed the  said  meeting  to  [give  date  and  place],  and  gave 
due  notice  of  such  adjournment;  that  at  the  time  and  place 
last  mentioned  the  supervisors  again  met,  and  adjourned 

said  meeting  to  the   ....   day  of   ,  19..,  and  gave 

notice  of  such  adjournment,  but  designated  no  place  where 
said  adjourned  meeting  would  be  held;  that  upon  the  said 
last  named  date  said  supervisors  met  pursuant  to  said 
adjournment,  and  not  otherwise,  and  attempted  to  decide 
upon  said  petition,  and  made  and  signed  an  order  purporting 
to  lay  out  said  highway  in  accordance  with  said  petition,  in 
which  said  order  said  highway  was  described  as  follows 
[give  description], 

IV.  That  said  highway,  as  by  said  order  laid  out,  runs 
over  and  through  the  said  lands  of  the  plaintiff,  and  the  said 

lands  of  the  said  C...   D E....   F....   and  G . . . . 

H . . . . ;  that  neither  the  said  plaintiff,  nor  the  said  C. . .  . 
D....,  E....  F....  and  G....  H....  consented  to  the 
making  of  the  said  order  laying  out  the  said  highway,  nor 
made  any  agreement  with  the  said  supervisors  concerning 
the  damages  by  them  sustained  by  reason  of  the  laying  out 
of  said  highway,  nor  did  either  the  plaintiff  nor  the  said 

C D E F and  G H realize  the 

said  damages.     That  the  said  supervisors,  by  an  order  made 

on  the   ....  day  of ,  19. .,  pretended  to  assess  the 

damages  resulting  from  the  laying  out  of  said  highway,  and 

awarded  as  such  damages  to  the  plaintiff  the  sum  of 

dollars,  but  that  the  said  supervisors  did  not  estimate  the 
damages  sustained  by  the  said  C....  D....,E....  F.... 
and  G . . . .  H . . . . ,  or  either  of  them,  nor  award  to  them  any 
damages  from  the  laying  out  of  said  highway. 

V.  That  on  the  ....  day  of ,  19. .,  the  said  super- 
visors gave  notice  in  writing  to  the  plaintiff,  requiring  him  to 
remove  the  fences  upon  his  said  lands  within  the  bounds  of 
said  proposed  highway,  as  aforesaid,  and  that  it  is  the  inten- 


Chapter  LXXVIL]  1225  [Form  1719. 

tion  of  said  supervisors,  if  the  plaintiff  does  not  remove  his 

said  fences  on  or  before  the  ....  day  of ,  19. .,  to 

cause  the  same  to  be  removed  and  to  open  said  highway,  and 
the  said  supervisors  assert  that  they  will  cause  the  said 
highway  to  be  opened  and  the  said  fences  to  be  removed  in 
case  the  plaintiff  does  not  remove  the  same  in  accordance 
with  said  order. 

VI.  That  by  reason  of  the  fact  that  the  said  supervisors 
adjourned  their  said  first  meeting  for  more  than  thirty  days 
before  deciding  upon  such  application  they  lost  jurisdiction  of 

said  proceeding,  and  their  said  order  of ,  19. .,  is  for 

that  reason  wholly  void;  that  said  last  named  order  is  also 
void  by  reason  of  the  fact  that  said  supervisors  assessed  and 
awarded  no  damages  to  the  said  C...  D....,E....  F.... 
and  G. . . .  H. . . .  for  the  laying  of  said  highway  upon  their 
lands,  as  aforesaid;  that  by  reason  of  the  said  facts  ^aid 
supervisors  have  no  legal  right  to  cause  a  removal  of  the 
plaintiff's  said  fences,  but  that  unless  restrained  by  this 
court  said  supervisors  will  remove  the  said  fences  and  open 
said  highway,  to  the  great  and  irreparable  injury  of  the 
plaintiff. 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
said  order  laying  out  said  pretended  highway  be  declared 
void,  and  that  the  said  supervisors,  and  their  successors  in 
office,  be  perpetually  enjoined  from  removing  the  plaintiff's 
said  fences  within  the  limits  of  said  proposed  highway,  or 
any  part  of  such  fences,  and  from  opening  the  said  highway; 
and  for  such  other  relief  as  may  be  equitable,  with  the  costs 
of  this  action. 

1719.  To  restrain  prosecutions  at  law  for  violation  of  a 
void  city  ordinance  (adapted  from  complaint  in 
Schlitz  Brewing  Co.  v.  Superior,  117  Wis.  297; 
93  N.  W.  1120). 

I.  That  at  the  times  hereinafter  mentioned  the  plaintiff 
was  and  still  is  a  corporation  organized  under  the  laws  of  the 

state  of ,  and  that  the  defendant,  the  city  of is 

a  municipal  corporation  organized  under  the  laws  of  said 
state,  and  that  the  defendants  C . . . .  D .  . . .  and  E . . . . 
F. . . .  are  respectively  the  mayor  and  city  clerk  of  the  said 
city  of 


Form  1719.]  1226  [Chapter  LXXVII. 

II.  That  the  plaintiff  has  been  for  many  years,  and  now 
is,  engaged  in  the  manufacture  and  sale  of  malt  liquors  having 

its  principal  office  in  the  city  of in  said  state,  where  it 

has  a  large  and  extensive  manufactory,  and  that  for  more 
than  one  year  last  past  it  has  established  and  maintained  in 
said  city  a  warehouse  for  the  storing  of  the  products  of  its 
manufactory,  and  used  by  it  in  the  conduct  of  its  business  in 
said  city  of   of  the  value  of   dollars. 

III.  That  in  the  usual  and  ordinary  course  of  its  business 
the  plaintiff  has  shipped,  at  frequent  intervals,  from  its  man- 
ufactory in to  the  said  city  of a  part  of  the 

product  of  its  said  manufactory  in  barrels,  kegs,  and  bottles, 

and  has  kept  the  same  in  its  said  warehouse  in until 

delivered  to  its  customers  in  the  said  last  named  city,  but 
that  the  plaintiff  has  not  sold,  nor  does  it  now  sell  or  offer  for 
sale,  at  said  last  named  city,  any  of  said  product  in  quantities 
less  than  one  gallon,  or  in  any  other  quantity  to  be  drunk  in 
or  about  said  warehouse;  that  the  business  of  the  said  plain- 
tiff at  said  last  named  city  consists  simply  and  onl^^  in  main- 
taining said  product  in  said  store-house,  and  delivering  there- 
from in  original  packages,  to  its  customers  in  said  last  named 
city,  the  said  product  of  its  manufactory,  and  that  said 
warehouse  is  used,  and  has  been  used  simply  as  a  place  of 
storage  for  the  said  product,  and  for  no  different  purpose. 
That  the  said  plaintiff  employs  an  agent  at  said  last  named 
city  to  take  orders  for  its  said  product,  and  to  deliver  the 
same  to  various  parts  of  the  said  city  and  elsewhere,  and  that 
the  taking  of  such  orders  and  the  delivery  of  said  product 
are  not  confined  to  said  warehouse,  but  extend  to  other  and 
various  parts  of  said  city,  and  to  other  and  various  buildings 
therein,  and  that  such  business  has  been  heretofore  carried 
on  without  regulation  or  supervision  by  said  city,  and  with- 
out necessity  therefor. 

IV.  That  on  or  about  the  ....  day  of ,  19.  .,  the 

said  city  adopted  an  ordinance,  which  was  thereafter  pu-b- 
hshed  according  to  law  and  went  into  force  and  effect,  where- 
in it  was  provided  among  other  things,  as  follows  [set  forth 
ordinance,  as  adopted, — in  the  case  in  question  the  ordinance 
provided  for  the  obtaining  of  a  license  and  giving  of  a  bond  by 
dealers   in  malt   liquors]. 

V.  That  the  said  ordinance  is  invalid  and  void,  for  the 
following  reasons  [here  set  out  the  reasons  for  the  invalidity  of 


Chapter  LXXVIL]  1227  [Form  1720. 

the  ordinance, — in  the  case  from  which  the  present  form  is 
adapted  the  reasons  alleged  were  thai  the  common  council  had 
no  power  under  its  charter  to  pass  such  an  ordinance,  that 
the  same  was  discriminating  and  in  restraint  of  trade]. 

VI.     That  said  defendant,  city  of and  the  other 

defendants,  as  its  ofTicers,  have  given  out  and  threatened 
that  they  will  enforce  the  provisions  of  said  ordinance,  and 
will  file  complaints  and  institute  actions  against  the  plain- 
tifT,  for  the  purpose  of  recovering  the  fines  and  penalties 
mentioned  therein  for  the  violation  thereof,  and  will  con- 
tinue, from  time  to  time,  to  file  such  complaints  and  institute 
such  suits,  and  thereby  create  and  carry  on  a  multiplicity  of 
suits  against  the  plaintiff,  and  compel  the  plaintiff  to  pay 
out  a  large  amount  of  money  in  fines  and  penalties,  and  will 
cause  the  frequent  arrest  of  the  plaintiff's  officers  and  agents, 
and  that  the  plaintiff  fears  that  unless  restrained  by  the 
judgment  of  this  court,  the  said  defendants  will  carry  out 
their  said  threats,  and  the  business  of  the  plaintiff  will  be 
utterly  destroyed  in  said  city,  and  irreparable  injury  will 
be  done  to  the  plaintiff,  and  the  plaintiff  will  be  subjected 
to  a  multiplicity  of  suits,  as  aforesaid. 

WHEREFORE  the  plaintiff  prays  that  the  said  ordinance 
be  declared  null  and  void,  and  that  said  defendants  be  en- 
joined and  restrained  from  enforcing  or  attempting  to  en- 
force said  ordinance  by  the  judgment  of  this  court;  and  for 
such  other  relief  as  may  be  just  and  equitable,  with  costs. 

1720.  To  restrain  the  erection  and  maintenance  of  an 
unauthorized  telephone  pole  in  front  of  the 
plaintiff's  store  (adapted  from  complaint  in 
Krueger  v.  Wisconsin  Tel.  Co.,  106  Wis.  96;  81 
N.  W.  1041). 

I.  [Allege  corporate  existence  of  the  corporation,  as  in  Form 
848.] 

II.  That  at  the  times  hereinafter  mentioned  the  plaintiff 
was,  and  still  is,  the  owner  and  in  possession  of  the  following 
described  real  estate  [describe  same],  and  that  the  plaintiff's 

title  extends  to  the  center  of Street  in  said  city  of 

,  which  street  bounds  said  property  on  the  south,  and 

to  the  center  of Street  in  said  city,  which  bounds  said 

property  on  the  east. 


Form  1720.]  1228  [Chapter  LXXVII. 

III.  That  there  is  now,  and  has  been  for  several  years 
last  past,  a  large  and  valuable  building  on  the  said  real  estate, 
which  said  building  is  the  property  of  the  said  plaintiff,  and 
has  been  and  is  used  for  a  drug  store  and  abuts  upon  the  said 
streets,  the  front  of  which  store  is  constructed  of  glass  door 
and  windows  for  the  purpose  of  furnishing  light,  and  that 
any  obstruction  in  front  of  said  windows  materially  and 
injuriously  interferes  with  the  use  and  enjoyment  of  said 
property,  and  depreciates  its  value,  which  said  depreciation  is 
constant  and  continuing,  and  cannot  be  adequately  compen- 
sated  in   damages. 

IV.  That  on  or  about  the  ....  day  of ,  19 . .,  the 

defendant  unlawfully  and  against  the  will  of  the  plaintiff, 
entered  upon  and  took  possession  of  a  strip  of  land  along 
the  easterly  and  southerly  side  of  said  building,  and  upon  the 
said  lands  of  the  plaintiff,  and  unlawfully  excavated  earth 
therefrom,  and  set  in  and  upon  the  said  lands  a  large  and 
unsightly  pole,  and  placed  wires  and  cables  and  other 
material  thereon,  along  and  across  the  said  lands  of  the 
plaintiff,  which  said  pole  and  wires  and  cables  thereon  mt,- 
terially  encumbers  the  said  property  and  obstructs  the 
view  from  the  south  side  of  said  store,  and  interfers  with  the 
use  and  enjoyment  of  said  property. 

V.  That  said  defendant  declares  its  intention  and  pur- 
pose to  keep  and  hold  possession  of  the  said  land,  and 
maintain  the  said  pole,  wires  and  cables  thereon,  without 
paying  compensation  therefor  to  the  plaintiff,  and  without 

leave  or  license  from  the  said  city  of ,  and  that  if  the 

defendant  is  allowed  so  to  hold  possession  of  said  land,  and 
maintain  said  pole,  wires  and  cables,  they  will  inflict  great 
injury  upon  the  plaintiff's  said  property,  which  injury  will 
be  irreparable. 

WHEREFORE  the  plaintiff  demands  judgment  for  the 

sum  of dollars,  his  damages  already  sustained,  and 

that  the  defendant  be  required  to  remove  the  said  pole, 
wires  and  cables  from  the  plaintiff's  said  land,  and  be  forever 
enjoined  and  restrained  from  maintaining  the  same  upon 
said  lands,  and  for  such  other  and  further  relief  as  shall  be 
equitable,  together  with  the  costs  of  this  action. 


Chapter  LXXVII.]  1229  [Form  1721. 

1721.  To  compel  accounting  by  corporate  officers,  and 
restrain  them  from  appropriating  corporate 
moneys  (adapted  from  complaint  in  Consoli- 
dated Vinegar  Works  v.  Brew,  112  Wis.  610;  88 
N.  W.  603). 

I.  [Allege  incorporation  of  the  plaintiff,  as  in  Form  848.] 

II.  That  on  the  ....  day  of ,  19.  .,  the  defendant 

was  duly  elected  secretary  and  treasurer  of  said  corporation, 
and  still  is  such  officer,  and  that  his  duties,  among  other 
things,  are  to  keep  true  books  of  account  of  the  business  of 
said  corporation,  and  receive,  receipt  for,  and  properly  dis- 
burse all  corporate  moneys,  and  render  accounts  therefor 
when  required  by  the  plaintiff  or  board  of  directors  of  said 
corporation. 

III.  That  the  assets  of  said  corporation  consists  of  manu- 
factured product,  of  fixtures  used  in  the  manufacture  of  said 
product,  and  of  outstanding  accounts  which  the  defendant 
has  been  and  is  collecting,  and  that  the  liabilities  of  said 
corporation  consists  of  outstanding  notes  and  claims  for 

merchandise,  amounting  in  all  to  the  sum  of dollars, 

and  that  the  assets  of  the  plaintiff  if  collected  and  paid  in 
are  sufficient  to  pay  all  of  said  liabilities. 

IV.  That  since  the  ....  day  of ,  19. .,  the  said 

defendant,   as  treasurer  aforesaid,  has  collected  upon  the 

accounts  due  said  corporation,  the  sum  of dollars,  and 

has  appropriated  the  same  to  his  own  use,  and  that  the 
defendant  still  has  in  his  possession  and  under  his  control, 
as  such  officer,  outstanding  accounts  belonging  to  the  said 
plaintiff,  amounting  to  about  the  sum  of dollars. 

V.  That  on  the  ....  day  of ,  19.  .,  the  plaintiff's 

president  demanded  of  said  defendant  that  he  account  for 
the  said  sum  so  collected  by  him,  and  that  the  defendant 
refused  to  render  any  account  of  said  moneys,  and  still 
refuses  to  render  such  account. 

VI.  That  the  creditors  of  said  plaintiff  are  pressing  their 
claims,  and  that  unless  the  money  belonging  to  the  plaintiff, 
and  in  the  hands  of  the  defendant,  is  accounted  for  and  paid 
over  by  him,  the  plaintiff  fears  that  its  property  w  ill  be  levied 
upon  and  sold,  and  its  business  greatly  injured. 

WHEREFORE  the  plaintiff  demands  judgment  that  an 
accounting  be  had  of  the  moneys  collected  by  the  said  de- 


Form  1722.]  1230  [Chapter  LXXVII. 

cndant  belonging  to  the  plaintiff,  and  that  the  said  defend- 
ant be  enjoined  from  appropriating  to  his  own  use  any  of  the 
moneys  so  collected,  and  required  to  pay  said  moneys  into 
the  treasury  of  the  plaintiff,  and  that  he  be  further  enjoined 
from  collecting  any  further  moneys  due  to  the  plaintiff; 
and  that  the  plaintiff  have  such  other  and  further  relief  as 
may  be  equitable,  and  for  the  costs  of  this  action. 

1722.  By  taxpayer  to  restrain  county  officers  from  pay- 
ing an  illegal  claim  (adapted  from  complaint  in 
Quayle  v.  Bayfield  Co.,  114  Wis.  108;  89  N.  W. 
892). 

I.  That  at  the  times  hereinafter  mentioned  the  plaintiff 
was  and  still  is  a  taxpayer  and  resident  of  the  county  of 

,  and  brings  this  action  as  such  taxpayer  on  behalf 

of  himself  and  all  other  taxpayers  of  the  said  county. 

II.  That  at  the  times  hereinafter  mentioned  the  said 
defendant  G . . . .  D . . .  .  was  and  still  is  the  duly  elected  and 

acting  county  clerk  of  the  said  county  of ,  and  said 

defendant  E . . . .  F . . . .  was  and  still  is  the  duly  elected  and 
acting  treasurer  of  the  said  county  of 

III.  That  on  the  ....  day  of ,  19.  .,  the  board  of 

supervisors  of  said  county,  without  authority  pre- 
tended to  pass  a  certain  resolution  authorizing  the  defendant 
C. . . .  D. . . .,  as  county  clerk  of  said  county,  to  draw  an 
order  upon  the  defendant  E. . . .  F. . . .,  as  county  treasurer 
of  said  county,  payable  to  the  defendant  G.  . . .  H. . . .,  for 

the  sum  of dollars,  and  to  deliver  the  same  to  said 

G. . .  .  H. . . .  upon  his  filing  with  said  clerk  a  satisfaction  or 
receipt  for  said  claim. 

IV.  That  the  said  board  of  supervisors  had  no  authority 
whatever  to  pass  said  resolution;  that  said  claim  is  not  a 
valid  claim  against  said  county,  for  the  reason  that  the  same 
identical  claim  was  presented  to  the  board  of  supervisors  of 
said  county  more  than  one  year  prior  to  the  said  ....  day 
of  ,  19..  [date  of  the  allowance]  and  was  then  dis- 
allowed in  full,  whereupon  said  G . . . .  H . .  . .  appealed  to  the 

circuit  court  of  said county  from  such  disallowance, 

and  the  said  action  was  brought  on  for  trial  before  the  said 
court  and  a  jury,  at  the  regular  ....  term  of  said  court,  and 
a  verdict  was  rendered  for  the  defendant   county, 


Chapter  LXXVIL]  1231  [Form  1723. 

upon   which   verdict,   on   the    ....    day   of    ,    19.., 

judgment  was  rendered  in  favor  of  said  county  and  against 
said  G ....  H .... ,  adj  udging  said  claim  to  be  illegal  and  void 
which  judgment  still  remains  in  full  force  and  effect. 

V.  Upon  information  and  belief,  that  the  said  G.... 
H . . . . ,  and  a  majority  of  the  members  of  said  board  of  super- 
visors have  conspired  together  by  unfair  and  unjust  means 
to  secure  the  payment  of  said  illegal  and  void  claim,  and  that 
the  action  of  the  said  board  of  supervisors  in  authorizing  the 
payment  thereof  as  aforesaid,  is  the  result  of  the  said  unlaw- 
ful conspiracy, 

VI.  That  if  the  said  claim  is  paid,  it  will  necessarily 
increase  the  taxes  of  this  plaintiff,  and  all  other  taxpayers  of 
said  county,  and  thereby  injuriously  deprive  the  plaintiff 
and  said  taxpayers  of  their  money,  and  that  the  plaintiff 
has  no  adequate  remedy  at  law. 

VII.  That  the  defendant  C. . . .  D. . . .,  as  clerk  afore- 
said, threatens  to  issue  said  order,  and  the  defendant  E .  .  .  . 
F. . . .  threatens  to  pay  the  same  out  of  the  moneys  of  said 
county,  and  that  the  plaintiff  fears  that  unless  en- 
joined by  the  judgment  of  this  court  the  said  order  will  be 
issued  and  paid,  and  the  plaintiff  and  the  other  taxpayers  of 
said  county  will  be  without  remedy. 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
said  resolution  of  the  said  board  of  supervisors  be  declared 
illegal  and  void,  and  be  cancelled,  and  that  the  defendants, 
and  each  of  them  be  enjoined  and  restrained  from  issuing, 
receiving,  or  in  any  manner  paying  said  order;  and  for  such 
other  and  further  relief  as  may  be  equitable,  with  the  costs 
of  this  action. 

1723.  By  taxpayer  to  restrain  collection  of  fraudulent 
judgment  against  school  district  (adapted  from 
Balch  V.  Beach,  119  Wis.  77;  95  N.  W.  132).^ 

I.     That  the  defendant  school  district  No of  the 

town  of is  a  duly  organized  school  district  of  the  town 

of ,  in  said  county  of ,  state  of 

'An  equitable  action  cannot  be  practice   by   motion.     Wis.    Stats, 

maintained    in    Wisconsin    to    set  1913  sec.  2879,  2832.     Equity  will, 

aside  a  judgment.     This  relief  is  however,  prevent  the  enforcement 

to    be    obtained    under    th     code  of  a  judgment  obtained  by  fraud, 


Form  1723.]  1232  [Chapter  LXXVII. 

II.  That  the  plaintiff  is  a  resident,  voter,  and  taxpayer  of 
said  school  district,  and  that  the  defendant  C . . . .   D . . . . 

is  the  town  clerk  of  the  said  town  of ,  and  that  said 

C . . . .  D . . . .  is  about  to  levy  a  tax  for  the  payment  of  the 
judgment  hereinafter  mentioned,  and  that  this  plaintiff 
brings  this  action  as  such  resident  and  taxpayer,  in  his  own 
behalf,  and  on  behalf  of  all  other  residents  and  taxpayers  of 
such   school   district. 

III.  That  the  defendant  C . . . .  D ,  . .  .  is  the  duly  elected 

and  qudified  and  acting  town  clerk  of  said  town  of , 

and  is  also  the  plaintiff  in  the  judgment  hereinafter  set  forth, 
and  claims  to  be  the  owner  thereof. 

IV.  That  at  the  times  hereinafter  mentioned,  the  assessed 
valuation  of  all  taxable  property  within  the  said  district  did 

not  exceed  the  sum  of dollars,  and  that  at  a  special 

school  district  meeting,  held  in  and  for  said  district  on  the 

....    day  of    ,   19..,   a  resolution  was  duly  passed 

authorizing  the  school  board  of  said  district  to  borrow  the 
sum  of dollars  for  the  purpose  of  building  a  school- 
house  in  said  district,  which  said  resolution  was  in  words  and 
figures,  as  follows  [copy  of  resolution]: 

V.  That  thereafter,  and  pursuant  to  said  resolution,  said 

sum  of dollars  was  borrowed  by  said  district,  and 

said  sum  is  still  owing  by  said  district,  and  that  other  sums 
have  been  provided  by  said  district  for  the  purpose  of  build- 
ing said  school-house. 

VI.  That  thereafter  the  defendant  C .  . . .  D . . . .  was 
appointed  one  of  the  building  committee  to  superintend  the 
building  of  the  school-house  for  said  district,  with  said  fund. 

That  notwithstanding  and   only  the  said  sum  of    

dollars  was  provided  by  said  district  for  the  purpose  of  build- 
ing said  school-house,  the  defendant  C. . . .  D. . . .,  together 
with  the  persons  assuming  to  act  as  the  school  board  of  said 
district,  without  authority  or  legal  right,  undertook  to  build 
and  construct  a  school-house  for  said  district  costing  more 

and  will  also  prevent  the  inequita-  tained  to  set  aside  any  judgment 

ble  use  of  a  judgment.     Crowns  v.  obtained    by    perjury    or    fraud    if 

Forest  Land  Co.,  102  Wis.  96;  78  N.  brought  in  the  same  judicial  district 

W.  433.     See  also  Balch  v.  Beach,  "within   three  years   after   the   dis- 

supra;  and  Johnson  v.  Huber,  106  covery  of  the  fraud.     Minn.  Gen. 

Wis.  282;  82  N.  W.  137.     In  Min-  Stats.  1913  sec.  7910. 
nesota    an   action    may   be   main- 


Chapter  LXXVIL]  1233  [Form  1723. 

than  the  sum  of dollars,  and  to  make  the  said  expense 

so  incurred  a  charge  and  indebtedness  against  said  school 
district. 

VII.  That  the  said  defendant  C . . . .  D .  . . . ,  and  the  said 
persons  pretending  to  act  as  the  school  board  of  said  dis- 
trict, in  pursuance  of  said  illegal  purpose,  and  prior  to  the 
....  day  of, ,  19 .  .,  incurred  and  contracted  indebted- 
ness in  the  name  of  said  school  district  to  an  amount  ex- 
ceeding the  sum  of dollars,  and  in  excess  of  the  limit 

of  indebtedness  which  said  district  was  by  law  authorized 
to  incur,  and  that  the  said  defendant  C. . . .  D.  .  .  .,  as  such 
building  committee,  undertook  to  employ  and  did  employ 
various  persons  to  perform  work  and  labor  upon  said  school- 
house,  and  attempted  to  make  the  claims  for  such  services  a 
charge  against  the  said  district,  notwithstanding  the  legal 
limit  of  indebtedness  which  said  school  district  was  author- 
ized to  incur  had  been  reached,  and  notwithstanding  that 
all  funds  which  had  been  provided  by  said  district  for  the 
building  of  said  school-house  had  been  expended. 

VIII.  That  thereafter  the  defendant  C ....  D ....  for  the 
purpose  of  procuring  payment  from  said  district  of  said  il- 
legal claims  and  demands,  procured  without  consideration 
an  assignment  to  himself  of  a  large  number  of  said  pretended 
claims  against  said  school  district,  and  thereafter  wrongfully 
and  fraudulently  colluded  with  the  director  and  clerk  of  said 

school  district  and  commenced  an  action  in  the court 

of county  against  the  said  school  district  upon  the 

said  claims,  in  his  own  name,  and  caused  the  summons  and 
complaint  in  said  action  to  be  served  upon  said  director  and 

clerk  upon  the  ....  day  of ,  19.  .,  a  copy  of  which 

complaint  is  hereunto  annexed,  marked  Exhibit  A. 

IX.  That  the  said  director  and  clerk  of  said  school  dis- 
trict colluded  with  the  plaintiff  C . .  .  .  D ,  .  .  .  and  concealed 
all  knowledge  of  the  bringing  of  said  action  from  the  plaintiff, 
and  other  taxpayers,  as  well  as  from  the  other  ofTicers  of  said 
district,  and  fraudulently  failed  and  neglected  to  interpose 
any  defense  to  said  action,  although  he  well  knew  that  said 
claims  and  demands  were  illegal  and  void  against  said  dis- 
trict. That  said  complaint  was  not  filed  until  after  the 
obtaining  of  judgment  in  said  action,  and  that  on  the  .... 

day  of ,  19. ,,  said  plaintiff  procured  judgment  upon 

default  in  said  action  upon  said  demands,  with  the  conniv- 

78 


Form  1724.]  1234  [Chapter  LXXVII. 

ance  and  consent  of  the  said  director  and  clerk  aforesaid, 
ajnd  caused  said  judgment  to  be  served  upon  himself  as  town 

c  erk  of  the  town  of and  the  said  defendant  C . . . . 

D . . . . ,  as  such  town  clerk  now  threatens  to  levy,  and  is 

proceeding  to  levy  the  sum  of dollars  on  the  taxable 

property  of  said  school  district  for  the  purpose  of  paying  the 
said  fraudulent  judgment,  and  to  insert  the  saidxsum  in  the 
tax-roll  of  said  town,  and  cause  the  same  to  be  collected  as 
other  taxes  are  collected. 

X.  That  after  the  discovery  of  the  entry  of  said  judgment, 
as  aforesaid,  the  plaintiff  demanded  of  the  director  and  clerk 
of  said  school  district  that  an  action  be  begun  in  the  name  of 
said  district  to  set  aside  said  judgment  and  restrain  the  col- 
lection thereof,  but  that  said  clerk  and  director  refused,  and 
still  refuse  to  bring  said  action,  and  that  the  plaintiff  and 
all  other  citizens  and  taxpayers  of  said  district  are  without 
remedy  against  said  illegal  claim  and  judgment,  except  in 
an  action  in  equity. 

XI.  That  the  said  defendant  C...  D....  will,  unless 
restrained  by  the  order  and  judgment  of  this  court,  proceed 
to  levy  and  collect  the  said  illegal  judgment. 

WHEREFORE  the  plaintiff  demands  that  the  defendant 
be  enjoined  and  restrained  from  levying  or  attempting  to 
levy  the  amount  of  said  judgment,  or  any  part  thereof, 
against  the  taxable  property  of  said  school  district,  and  that 
the  plaintiff  have  such  other  and  further  relief  as  may  be 
equitable,  together  with  the  costs  of  this  action. 

1724.  To  restrain  sheriff  from  selling  land  on  execution 
under  a  judgment  which  has  been  compromised 
and  settled,  but  never  discharged  (precedent 
sustained  in  Johnson  v.  Huber,  106  Wis.  282; 
82  N.  W.  137). 

I.  That  the  defendant  E F was  for  two  years 

immediately  preceding  the  first  Monday  of  January,  1899, 
sheriff  of  said  county,  duly  qualified  and  acting  as  such. 

II.  That  prior  to  the  ....  day  of ,  19.  .,  an  action 

was  pending  in  said  court,  wherein  the  said  defendant  C .  . . . 
D . , . .  was  plaintiff,  and  this  plaintiff  was  defendant.    That 

on  said  ....  day  of ,  19. .,  such  proceedings  were  had 

in  said  action  last  named  that  a  judgment  was  duly  rendered 


Chapter  LXXVIL]  1235  [Form  1724. 

therein  in  favor  of  said  defendant  C . . . .  D . . . .  plaintiff  in 
said  last  named  action  and  against  this  plaintiff  A. . . .  B . . . . 

defendant  therein,  for  the  sum  of dollars  damages 

and dollars  costs  and  disbursements  therein,  which 

judgment  was  duly  entered  and  docketed  in  the  office  of  the 
clerk  of  said  court  on  said  last  named  day. 

III.  That  soon  after  the  rendition  of  said  judgment,  to- 
wit,  prior  to  the  first  day  of  February,  19. .,  the  said  plain- 
tiff, defendant  in  said  last  named  action,  appealed  from  said 
judgment  against  him  to  the  supreme  court  of  the  state  of 

and  duly  perfected  said  appeal  in  said  supreme  court. 

That  this  plaintiff  was  also  about  to  commence  an  action 
against  C . . . .  D . . . .  for  alleged  slanderous  words  spoken 
by  said  G. . . .  D. . . .  of  this  plaintiff.     That  some  time  in 

the  month  of or ,  19 . . ,  the  said  C .  . . .  D . . .  . 

and  this  plaintiff,  through  the  interposition  of  friends,  agreed 
that  said  appeal  should  be  dismissed  and  that  all  matters  of 
difference  between  them  should  be  settled,  cancelled  and 
adjusted,  and  that  they  would  meet  together  and  agree  upon 
the  terms  of  said  settlement.  That  thereupon  said  appeal 
was,  in  consideration  of  said  agreement,  duly  dismissed  and 
this  plaintiff  abandoned  the  prosecution  of  the  action  he  was 

about  to  commence  against  said  C...   D defendant 

therein.  That  on  the  ....  day  of ,  19. .,  in  pursu- 
ance of  said  agreement,  and  to  carry  the  same  into  effect, 
the  said  C . . .  .  D . . . .  and  this  plaintiff  met  and  this  plaintiff 
then  and  there  agreed  to  and  did  pay  to  the  said  C .  .  . .  D . . . . 
the  plaintiff  in  said  last  named  action,  and  defendant  herein, 

the  sum  of   dollars,  which  said  C . . . .   D . . . .   then 

and  there  agreed  to  receive  in  full  satisfaction  and  discharge 
of  said  judgment  and  of  all  claims  whatsoever.   That  by  the 

terms  of  said  agreement dollars  thereof  was  then  and 

there  paid  to  said  C . . . .  D . . . .  by  this  plaintiff  and 

dollars  was  by  this  plaintiff  paid  to  and  received  by  him,  the 
said  C . . . .  D .  . .  .  in  pursuance  of  the  said  agreement  within 
....   days  from  the  said   ....   day  of   19 . . 

IV.  That  on  or  about  the  ....  day  of ,  19. .,  the 

said  C.  .  . .  D. . . .,  by  his  attorney,  L.  . . .  M. . . .,  in  vio- 
lation of  said  agreement,  wrongfully  caused  to  be  issued  out 
of  said  court  an  execution  upon  said  judgment  against  this 

plaintiff  and  in  favor  of  him,  said  C D . . . .   for  the 

amount  that  appeared  of  record  to  be  due  thereon,  to-wit,  the 


Form  1725.]  1236  [Chapter  LXXVII. 

said  sum  of dollars,  said  execution  being  under  the 

seal  of  said  court  and  in  due  form  as  prescribed  by  statute; 
that  said  L . . . .  M . . . .  delivered  said  execution  to  the  said 
defendant  E . . .  .  F . . . . ,  then  the  sheriff  of  said  county  as 
hereinbefore  alleged.  That  said  sheriff  now  holds  said  exe- 
cution and  gives  out  and  threatens  that  he  will,  by  virtue 
thereof,  levy  upon  and  seize  the  property  of  this  plaintiff, 
defendant  in  said  execution,  to  satisfy  the  same. 

V.  That  plaintiff  is  the  owner  in  fee  simple  and  in  pos- 
session of  the  following  described  land,  together  with  num- 
erous other  tracts  of  land,  situated  in  the  county  of 

and  state  of ,  to-wit  [describe  the  land]    and  that  said 

defendant  C . . . .  D . . . .  claims  a  lien  upon  said  land  by  vir- 
tue of  said  judgment,  and  that  said  judgment  is  an  apparent 
lien  upon  said  land  and  a  cloud  upon  plaintiff's  title  thereto. 

WHEREFORE  plaintiff  demands  the  judgment  of  this 
court,  that  said  judgment  so  as  aforesaid  rendered  and 
docketed  in  said  county  in  favor  of  said  C . . . .  D . , . .  and 
against  this  plaintiff  be  satisfied  and  cancelled  of  record; 
that  said  E . . . .  F . .  . .  be  perpetually  restrained  and  en- 
joined from  making  any  levy  upon  or  seizure  of  the  property 
of  this  plaintiff  by  virtue  of  said  execution  and  from  taking 
any  action  whatever  under  and  pursuant  to  said  execution, 
except  to  return  the  same  in  pursuance  of  the  order  and  judg- 
ment of  the  court,  and  that  in  the  meantime  and  pending 
this  action  and  until  further  order  herein,  said  defendant 
C .  . . .  D . .  .  .  and  said  sheriff,  their  attorneys,  agents,  depu- 
ties, and  all  persons  in  any  way  acting  for  or  representing 
them,  or  either  of  them,  be  restrained  and  enjoined  from 
levying  said  execution  upon  the  property  of  this  plaintiff 
and  from  taking  any  action  whatever  to  enforce  said  judg- 
ment and  that  the  plaintiff  may  have  such  other  or  further 
order,  or  judgment  as  the  court  shall  deem  just  and  equitable. 

1725.     Against  continuing  in  business  after  selling  out 
(Conn.  Pr.  Act,  Form  137). 

I.     That  on   ,  19..,  defendant,  being  a  physician 

practi-ing  in  the  city  of ,  and  its  vicinity,  in  consid- 
eration that  plaintiff,  who  was  also  a  physician,  would  pur- 
chase of  him  the  good-will  of  his  practice,  for dollars, 

agreed  with  plaintiff  that  he  would  not  practice  medicine,  or 


Chapter  LXXVII.  1237  [Form  1726- 

in  any  manner  do  business  as  a  physician  in  said  city  or  the 
vicinity   thereof,    at   any   time   after   said   day. 

II.  That  plaintiff  accordingly,  on  said  day,  purchased 
from  defendant  the  good-will  of  his  said  practice,  for  the  price 
and  on  the  terms  aforesaid,  and  paid  to  defendant  said  sum 
therefor. 

III.  That  plaintiff  thereupon  opened  and  has  since  main- 
tained an  ofTice  in  said  city  as  a  practicing  physician. 

IV.  That  defendant,  in  violation  of  his  said  agreement,  on 

,  19. .,  opened  an  office  in  said  city,  and  commenced 

and  still  continues  to  practice  medicine,   and  do  business 
as  a  physician  in  said  city  and  the  vicinity. 

V.  That  by  reason  thereof  plaintiff  has  been  damaged 
dollars. 

WHEREFORE  plaintiff  demands  judgment  permanently 
enjoining  defendant  from  continuing  said  practice,  and  for 
dollars  damages,  with  costs. 

1726.     Complaint  for  interpleader  by  life  insurance  com- 
pany against  two  real  claimants  of  a  policy. 

IE.     [Allege   plaintiff's    corporate    character    and   business.] 

II.  [Allege  issuance  of  policy  and  give  its  terms.] 

III.  [Set  forth  the  facts,  so  far  as  known,  giving  rise  to  the 
rival  claims,  as  for  instance  an  assignment  by  the  insured, 
or  other  alleged  facts  on  which  the  rival  claims  are  based,  and 
show  that  both  parties  threaten  to  sue  the  plaintiff.] 

IV.  [Allege  that  plaintiff  is  not  colluding  with  either  of  the 
defendants  concerning  the  matters  in  question,  and  does  not 
bring  the  action  at  the  solicitation  of  either  of  the  defendants 
but  solely  of  its  own  motion,  in  order  to  avoid  the  annoyance, 
costs  and  expense  of  double  litigation.] 

V.  That  plaintiff  is  ignorant  of  the  respective  rights  of  the 
said  defendants,  and  cannot  determine,  without  hazard  to 
itself,  to  which  of  the  said  defendants  the  moneys  due  upon 
and  under  the  said  policy  of  insurance  of  right  belong;  that 
it  is  in  doubt  as  to  which  of  the  said  defendants  is  right  in 
his  claim,  and  has  no  means  of  satisfactorily  ascertaining 
what  are  the  facts  of  the  several  transactions  which  are 
relied  upon  by  said  defendants  as  the  foundation  of  their 
respective  claims;  and  this  defendant  cannot  pay  over  the 
moneys  due  upon  the  said  policy  of  insurance,  to  any  or 


Form  1726.]  1238  [Chapter  LXXVII. 

either  of  the  said  defendants,  without  taking  upon  itself  the 
responsibility  of  determining  doubtful  questions  of  law  and 
of  fact,  and  without  incurring  the  risk  of  being  subjected  to 
great  cost  and  expense  in  defending  itself  and  to  a  double 
payment  of  the  same  indebtedness,  if  it  should  finally  ap- 
pear that  the  plaintiff  had  wrongfully  determined  in  favor  of 
any  one  claimant  at  the  expense  of  the  others,  and  without 
being  involved  in  a  multiplicity  of  suits. 

VI.     Plaintiff  admits  that  the  sum  of dollars,  with 

interest  from  the  ....  day  of ,  19 .  .,  is  due  upon  and 

under  the  said  policy  of  insurance,  and  offers,  and  is  ready 
and  willing,  to  bring  the  money  due  upon  the  said  policy  of 

insurance,  to-wit,  the  sum  of dollars,  together  with 

^aid  interest,  into  court,  to  abide  the  judgment  to  be  made 
and  entered  herein. 

WHEREFORE,  etc.  [Prayer  for  judgment  to  the  effect 
that  plaintiff  he  allowed  to  bring  the  money  into  court,  that  the 
parties  be  enjoined  from  prosecuting  actions  against  the 
plaintiff,  and  that  they  be  required  to  make  their  claims  to  the 
fund  and  that  plaintiff  be  discharged  from  liability,  etc.] 


CHAPTER  LXXVin. 

COMPLAINTS    IN    ACTIONS    FOR    DIVORCE   AND 

ANNULMENT  OF  MARRIAGE. 


1727.  Complaint  for  divorce  on  the 

ground  of  adultery. 

1728.  Complaint    for    limited    di- 

vorce on  account  of  cruel 
and  inhuman  treatment. 

1729.  Allegation  of  wilful  desertion. 

1730.  Allegation  of  habitual  drunk- 

enness. 

1731.  Allegation  of  voluntary  sep- 

aration for  five  years. 

1732.  Allegation  of  failure  to  sup- 

port, by  wife. 

1733.  Allegation    of    conduct    by 

husband  rendering  it  un- 
safe for  wife  to  live  with 
him. 


1734.  Allegation  of  impotency,  or 

physical  incapacity. 

1735.  For  annulment  of  marriage 

on  account  of  nonage. 

1736.  For  annulment  on  the  ground 

of  lunacy. 

1737.  For  annulment  on  the  groimd 

of  fraud  by  husband. 

1738.  The  same,  on  the  ground  of 

fraud  by  wife. 

1739.  For  annulment,  on  account 

of  defendant's  prior  mar- 
riage, plaintiff  acting  in 
good  faith.    (Nebraska). 

1740.  Complaint  to  affirm  validity 

of  marriage. 


The  divorce  statutes  of  the  various  states,  while  quite 
similar  in  general  features,  differ  considerably  in  detail. 
The  greater  part  of  the  forms  in  this  chapter,  while  primarily 
adapted  to  use  in  Wisconsin,  may  with  proper  alteration  be 
adapted  for  use  in  the  other  states.  Careful  attention  should 
be  paid  to  the  statutory  requirements  in  each  case,  as  such 
actions  are  entirely  regulated  by  the  statute.  The  statutes 
governing  divorce  in  the  various  states  are  cited  in  the  note  K 

1727.    Complaint  for  divorce  on  the  ground  of  adultery. 

I.    That  on  the  ....  day  of ,  19 . . ,  at state 

of   the  plaintiff  and  defendant  were  married,  and 

ever  since  have  been  and  now  are  husband  and  wife. 


iWis.  Stats.  1913  sec.  2348  et 
seq.;  Ariz.  R.  S.  1913  sec.  3858  et 
seq.;  Ark.  Dig.  of  Stats.  1904  sec. 
2672  etseq.;  Cal.  C.  C.  1906  sec.  90 
et  seq.;  Colo.  Stats.  Ann.  1911  sec. 
2112  et  seq.;  Idaho  Rev.  Codes  1908 
sec.  2645  et  seq.;  Iowa  Ann.  Code 


1897  sec.  3171  et  seq.;  Kans.  Gen. 
Stats.  1909  sec.  6258  et  .se?.;  Mont. 
Rev.  Codes  1907  sec.  3641  et  seq.; 
Minn.  Gen.  Stats.  1913  sec.  7111 
et  seq.;Mo.  R.  S.  1909  sec.  2370  et 
seq. ;  Neb.  R.  S.  1913  .see.  1567  el  seq. ; 
N.  Dak.  Rev.  Codes  1905  sec.  4048 


Form  1727.]  1240  [Chapter  LXXVIII. 

II.  That  since  said  marriage  [or,  since  the day   of 

19. .]  and  for  more  than  one  year  immediately  pre- 
ceding the  commencement  of  this  action,  the  plaintifT  and 
defendant  have  continuously  resided,  and  now  reside  within 
this  state.  [This  allegation  should  affirmatively  show  residence 
within  the  state  for  the  time  required  by  the  statute.] 

[Or,  if  the  marriage  is  alleged  to  have  taken  place  within  the 
state,  insert  here  the  following :  That  since  said  marriage  the 
plaintiff  (and  defendant)  have  continuously  resided,  and  now 
reside,  wdthin  this  state.] 

[Or,  if  the  adultery  is  alleged  to  have  been  committed  within 
this  state:  That  the  plaintiff,  at  the  time  of  the  commission 
of  the  several  acts  of  adultery  hereinafter  mentioned,  was 
and  now  is  a  resident  of  this  state.] 

III.  That  on  the  ....  day  of ,  19. .,  at  the  house 

of  E . . . .  F .  . . .  [or,  at  No Street]  in  the  city 

of the  said  defendant  committed  adultery  with  one 

M . . . .  N . . . .  [Charge  of  repetition :  That  a  few  days  sub- 
sequently thereto,  the  defendant  again  committed  adultery, 
at  the  house  aforesaid,  with  the  said  M .  .  .  .  N . . . .  ] 

[Where  the  precise  time  is  not  known:    That  between  the 

....  day  of ,  19 . . ,  and  the  ....  day  of ,  19 .  . , 

at  times  which  the  plaintiff  is  unable  more  particularly  to 
state,   the   defendant   committed   adultery,   etc.,   as   above.] 

[Where  the  place  is  not  known:    That  on  the  ....  day  of 

,  19.  .,  at  some  place  in  the  city  of ,  which  the 

plaintiff  is  unable  more  particularly  to  state,  the  defendant, 
etc.,  as  above.] 

[Where  time  and  place  are  not  known :  That  at  divers  places 

within  the  city  of and  at  various  times  between  the 

....  day  of ,  19. .,  last  and  this  action,  but  at  what 

particular  times  and  places  the  said  plaintiff  is  unable  to 
state,  the  defendant  has  committed  adultery  with  one 
M....  N....] 

[Where  the  paramour  is  not  known:  That  on  the  ....  day 

of ,  19 .  . ,  at  the  house  of  E F . . . .  [or,  at  No , 

Street]  in  the  town  of the  defendant  com- 

et  seq.;  S.  Dak.  C.  C.  1908  sec.  66  Laws  1907  sec.  1208  et  seq.;  Wash. 

eiseq.;  Okla.  Comp.  Laws  1909  sec.  Rem.  and  Bal.  Code  1910  sec.  982 

6172  et  seq.;  Oregon  Laws  1910  sec.  et  seq.;  Wyo.  Comp.  Stats.  1910  sec. 

507  et  seq  ;  Tex.   Civ.  Stats.  Ann.  3924  et  seq. 
1913  art.  4630  et  seq.;  Utah  Comp. 


Chapter  LXXVIIL]  1241  [Form  1727. 

mitted  adultery  with  a  man  [or,  a  woman]  whose  name  is 
unknown  to  the  plaintiff  [or,  one  or  more  women,  whose 
names  are  unknown  to  the  plaintiff.] 

IV.  That  scid  several  acts  of  adultery  were  committed 
without  the  procurement,  privity,  or  connivance  of  the 
plaintiff;  and  that  she  has  never  forgiven  or  condoned  the 
same,  nor  voluntarily  cohabited  with  the  defendant  since 
she  obtained  knowledge  of  said  acts,  and  that  three  years 
have  not  elapsed  since  the  discovery  by  the  plaintiff  of  the 
offenses  herein  charged. 

V.  That  there  are  no  living  children  of  said  marriage  [or: 
That  there  are  living  of  the  issue  of  said  marriage    .... 

children,  named,  naming  the  eldest,  aged years,  and, 

give  names  and  ages  of  other  children.] 

VI.  That  the  moral  character  of  defendant  is  bad  and 
such  as  to  render  him  unfit  to  have  the  custody  of  said 
children  [or:  That  defendant  has  no  proper  home  for  said 
children.  And  state  other  facts  showing  that  the  custody 
of  the  children  should  be  awarded  to  the  plaintiff.] 

VII.  That  the  plaintiff  is  wholly  without'  property  of  her 
own.  [Or  state  what  property  the  plaintiff  has,  and  her  health 
and  capacity  to  earn.] 

VIII.  That,  as  plaintiff  is  informed  and  believes,  the 
defendant  is  possessed  of  personal  property  to  the  value  of 

not  less  than dollars,  and  of  real  property  worth  not 

less  than  the  sum  of dollars;  and  that  the  defendant 

is  engaged  in  the  business  of [stating  it]  from  which 

he  derives  an  income  of dollars,  or  more,  annually. 

WHEREFORE  the  plaintiff  demands  judgment:  (1)  That 
the  bonds  of  marriage  subsisting  between  the  plaintiff  and 
defendant  be  wholly  dissolved.  (2)  That  the  care  and 
custody  of  said  children  may  be  awarded  to  her,  the  said 
plaintiff,  and  that  the  defendant  be  required  to  pay  such 
suitable  allowance  in  money  for  their  support,  maintenance 
and  education  as  the  court  shall  deem  proper.  (3)  That 
the  plaintiff  be  adjudged  such  alimony  out  of  the  defendant's 
estate,  or  such  share  of  the  defendant's  property  as  shall  be 
just  and  equitable.  (4)  That  the  plaintiff's  name  be 
changed  to  that  by  which  she  was  known  prior  to  such 
marriage.  (5)  That  she  recover  the  costs  of  this  action. 
(6)    And  for  such  further  relief  as  may  be  just. 


Forms  1728,  1729.]  1242  [Chapter  LXXVIII. 

1728.  Complaint  for  limited  divorce  on  account  of  cruel 

and  inhuman  treatment. 

[Allegations  of  marriage  and  residence  for  a  time  sufficient 
to  satisfy  the  particular  statute.    See  the  preceding  form.] 

That  since  said  marriage  the  defendant  has  treated  her  in 
a  cruel  and  inhuman  manner,  and  since  about  the  begin- 
ning of  the  year  19..,  has  repeatedly  committed  acts  of 
cruelty  and  violence  upon  deponent  and  her  children,  and 
in  particular  as  follows  [state  the  specific  acts,  e.  g.,  thus: 

On  the  ....  day  of ,  19. .,  at the  defendant, 

without  any  provocation,  struck  and  beat  the  plaintiff, 
severely  injuring  her  face  and  breast;  and  on  the  ....  day 

of   ,   19..,  at   the  defendant  again,  without 

any  provocation,  knocked  the  plaintiff  down,  and  kicked 
her  in  the  side;  and  that  defendant's  entire  course  of  conduct 
towards  the  plaintiff,  with  rare  intervals,  has  been  for  a  long 
period  uniformly  brutal  and  abusive,  he  being  constantly 
in  the  habit  of  applying  abusive  epithets  to  her,  of  threaten- 
ing her  with  violence,  and  of  striking  and  attempting  to 
strike  her;  and  it  has  become  entirely  unsafe  for  her  to  live 
with  him]. 

[Or:  That  on  the  ....  day  of ,  19. .,  the  defendant 

forcibly  expelled  her  from  his  residence,  and  has  refused  to 
permit  her  to  return,  and  has  since  refused,  or  neglected, 
and  still  does  refuse,  or  neglect  to  provide  for  her.] 

[Insert  proper  allegations  as  to  children  and  property, 
as  suggested  in  the  preceding  form.] 

WHEREFORE  the  plaintiff  demands  judgment  of  divorce 
from  bed  and  board  forever  [follow  with  other  clauses  of  prayer, 
as  in  preceding  form]. 

1729.  Allegation  of  wilful  desertion. 

That  although  the  plaintiff  has  always  conducted  herself 
towards  the  said  defendant  as  a  faithful  and  obedient  wife, 
the  defendant,  disregarding  his  duties  as  a  husband,  on  or 

about  the  ....  day  of 19. .,  wilfully  deserted  the 

plaintiff,  and  has  ever  since  said  time  and  for  more  than  one 
year  immediately  preceding  the  commencement  of  this 
action,  uninterruptedly  continued  said  desertion  without 
cause  on  the  part  of  this  plaintiff. 


Chapter  LXXVIIL]  1243  [Forms  1730-1734. 

1730.  Allegation  of  habitual  drunkenness. 

The  defendant,  disregarding  his  duties  as  a  husband  to- 
wards the  plaintiff,  has  been  an  habitual  drunkard  for  the 
space  of  more  than  one  year  immediately  preceding  the 
commencement  of  this  action  [in  Minnesota:  immediately 
preceding  the  filing  of  the  complaint]. 

1731.  Allegation  of  voluntary  separation  for  five  years. 

That  on  or  about  the  ....  day  of 19. .,  the  plain- 
tiff and  defendant  agreed  to  live  entirely  separate  and  apart, 
and  that  ever  since  said  time,  in  pursuance  of  said  agree- 
ment, and  for  more  than  five  years  next  preceding  the  com- 
mencement of  this  action,  the  plaintiff  and  defendant  have 
voluntarily  lived  entirely  separate  from  each  other. 

1732.  Allegation  of  failure  to  support,  by  wife. 

That  ever  since  the  ....  day  of ,  19 . .,  and  for 

years  prior  to  the  commencement  of  this  action,  the  said 
defendant  *  though  of  sufficient  ability,  has  wholly  refused 
and  neglected  to  provide  for  the  plaintiff. 

1733.  Allegation  of  conduct  by  husband  rendering  it 

unsafe  for  wife  to  live  with  him. 

[As  in  preceding  form  to  the  *  and  coniinuing]:  has  been 
guilty  of  conduct  toward  the  plaintiff  which  renders  it  un- 
safe and  improper  for  plaintiff  to  live  with  said  defendant, 
in  this,  that  the  said  defendant  has  [here  state  specifically 
the  conduct  complained  of]. 

1734.  Allegation  of  impotency,  or  physical  incapacity. 

That  the  defendant  was,  at  the  time  of  said  marriage,  and 
ever  since  has  remained,  physically  incapable  of  entering 
into  the  marriage  state,  or  of  consummating  the  said  mar- 
riage by  sexual  intercourse,  by  reason  of  incurable  per- 
sonal defects,  in  that  [state  the  nature  of  the  said  incapacity 
briefly,  e.  g.,  thus:  the  uterus  and  vagina  of  the  said  de- 
fendant were,  at  the  time  of  such  intermarriage,  and  for  a 
long  time  previous  thereto  had  been,  in  a  diseased  and  in  a 
schirrous,  cartilaginous,  and  ulcerated  state,  and  unnaturally 
thickened  and  indurated]. 


Forms  1735-1737.]  1244  [Chapter  LXXVIII. 

1735.  For  annulment  of  marriage  on  account  of  nonage. 

I.  [State  appointment  of  guardian,  as  in  Form  863.] 

II.  That  on  the  ....  day  of ,  19.  .,  at the 

plaintiff  was  in  form  married  to  the  defendant. 

III.  That  at  the  time  of  such  marriage  they  were,  and 
ever  since  have  been,  inhabitants  of  this  state  [or  state  facts 
as  to  residence  so  as  to  bring  the  case  within  the  particular 
statute]. 

IV.  That  at  the  time  of  said  marriage  said  plaintiff  was 
but  ....  years  of  age,  and  incapable  of  contracting  marriage. 

V.  That  said  plaintiff  and  defendant  cohabited  together 

until  about  the  ....  day  of ,  19. .,  since  which  time 

they  have  not  cohabited  as  man  and  wife,  said   plaintiff, 

at  the  time  said  cohabitation  ceased  being  less  than 

years  of  age. 

WHEREFORE  plaintiff  demands  judgment  that  said 
marriage  between  said  plaintiff  and  the  defendant  may  be 
annulled  and  declared  void,  as  provided  by  the  statute,  and 
for  the  costs  of  this  action. 

1736.  For  annulment  on  the  ground  of  lunacy. 

[/,  //  and  III  as  in  preceding  form,  except  that  where  the 
plaintiff  has  been  restored  to  reason  omit  I.] 

IV.  That  at  the  time  of  such  marriage  she  was  a  lunatic, 
and  incapable  of  contracting  a  marriage;  and  has  been  ever 
since  [or,  and  that  she  remained  a  lunatic  for  the  space  of 
about  six  months  after  such  marriage.] 

V.  That  her  reason  was  restored  about  the  month  of 

,  19.  .,  and  that  she  is  now  of  sound  mind;  but  that 

she  has  not  cohabited  with  the  defendant  since  she  was  re- 
stored to  a  sound  mind. 

WHEREFORE,  etc.     [as  in  preceding  form.] 

1737.  For  annulment,  on  the  ground  of  fraud  by  hus- 

band. 

I.  That  on  the  ....  day  of ,  19. .,  at ,  the 

plaintiff  was  in  form  married  to  the  defendant. 

II.  That  for  the  purpose  of  inducing  the  plaintiff  to  con- 
sent to  the  said  marriage,  the  defendant  falsely  and  fraudu- 
lently represented  to  her  that  he  was  one  A . . .  .  B . .  . . , 
whom  the  plaintiff  knew  by  reputation  to  be  a  respectable 


Chapter  LXXVIIL]  1245  [Forms  1738,  1739. 

and  honorable  man;  and  he  concealed  from  the  plaintiff  his 
real  name  and  character. 

III.  That  the  defendant's  real  name  is,  and  always  was 
C . . . .  D .  . . . ,  and  not  A . . . .  B . .  .  . ;  and  that  he  was  and  is 
a  man  of  very  bad  repute,  having  been  convicted  of  forgery, 

and  confined  in  the  state  prison  at in  this  state,  under 

sentence  therefor,  for  ....  years. 

IV.  That  the  plaintiff  was  induced  to  consent  to  the  said 
marriage  by  the  said  representations,  which  she  believed  at 
the  time  of  her  said  marriage  to  betrue  [and  by  her  ignorance 
of  the  facts  so  concealed];  and  that  if  the  said  representations 
had  not  been  made  to  her  [and  said  concealment  had  not 
been  practiced]  she  would  never  have  consented  to  the  said 
marriage. 

V.  That  immediately  upon  her  discovery  of  the  false- 
hood of  the  said  representations,  to-wit,  on  the  ....  day  of 

,  19..,  the  plaintiff  left  the  defendant's  house,  and 

has  never  since  cohabited  with  him. 

WHEREFORE,  etc.  [as  in  Form  1735.] 

1738.  The  same,  on  the  ground  of  fraud  by  wife. 

[As  in  preceding  form,  but  substitute  for  paragraphs  II  and 
III,  the  following]: 

II.  That  for  the  purpose  of  inducing  the  plaintiff  to 
consent  to  the  said  marriage,  the  defendant  falsely  and 
fraudulently  represented  to  him  that  she  was  a  chaste  and 
virtuous  woman,  which  representation  the  plaintiff  believed 
to  be  true. 

III.  That  defendant  was  in  fact  unchaste  and  of  lewd 
habits,  and  was  the  mother  of  an  illegitimate  child;  which 
facts  the  defendant  fraudulently  concealed  from  the  plain- 
tiff. 

1739.  For  annulment  on  account  of  defendant's  prior 

marriage,  plaintiff  acting  in  good  faith  (Neb.  R. 
S.  1913  sec.  1593). 

I  and  II.  [Allege  residence  and  marriage,  as  in  previous 
forms.] 

III.     That  said  defendant  and  one  E....   F....   were 

married  at in  the  state  of on  the  ....  day  of 

,  19. .,  and  that  they  cohabited  together  as  husband 


Form  1740.]  1246  [Chapter  LXXVIII. 

and  wife  until  about  the  ....  day  of  19..,  since 

which  time  the  said  E. . . .  F. . . .  remained  absent  from  said 
defendant,  and  she  had  at  no  time  prior  to  said  marriage 
with  the  plaintifT,  either  seen  or  heard  from  him  during  said 
period,  but  was  informed  that  he  was  dead,  and  so  believed, 
and  said  marriage  with  plaintiff  was  entered  into  with  the 
full  belief  on  the  part  of  the  plaintiff  and  defendant  that  said 
E. . . .  F.  . . .  was  dead. 

IV.  That  said  E. . . .  F. . . .  was  not  dead,  and  is  now 

living  in  the  state  of ;  that  there  has  been  no  judgment 

of  divorce  between  the  said  E .  .  . .  F . . .  .  and  the  defendant, 
and  that  the  defendant  is  still  the  lawful  wife  of  the  said 
E....  F.... 

V.  That  the  issue  of  said  marriage  of  the  plaintiff  with 
the  defendant,  now  living,  is  as  follows  [give  names  and  ages]. 

WHEREFORE  plaintiff  demands  judgment  that  said 
marriage  between  the  plaintiff  and  defendant  may  be  de- 
clared null  and  void,  and  that  defendant  be  adjudged 
not  entitled  to  dower  in  plaintiff's  real  estate,  or  to  any  share 
or  interest  in  his  personal  estate,  and  that  said  marriage 
be  decreed  to  have  been  contracted  in  good  faith  with  the 
full  belief  of  the  parties  that  E. . . .  F. . . .  was  dead,  and 
that  the  children  of  said  marriage,  as  aforesaid,  be  adjudged 
legitimate  issue  of  the  plaintiff;  and  for  such  other  relief  as 
equity  may  require. 

1740.    Complaint  to  affirm  validity  of  marriage. 

[Allege  marriage  and  residence,  as  in  Form  1727,  or  as  the 
statute  of  the  particular  state  may  require.] 

III.     That  the  said  defendant,  ever  since  the  ....  day  of 

,   19..,  has  denied  and  still  continues  to  deny  the 

validity  of  the  said  marriage,  and  alleges  that  the  same  was 
void  because  [here  state  the  claim  of  invalidity  made].  But 
this  plaintiff  alleges  that  in  truth  and  in  fact  [here  negative 
the  claim  of  invalidity]  and  the  said  marriage  between  plain- 
tiff and  defendant  was  and  is  a  valid  and  binding  marriage. 

WHEREFORE  plaintiff  demands  judgement  that  the 
said  marriage  be  declared  vahd;  an  for  such  further  relief  as 
may  be  just  and  equitable,  and  for  the  costs  of  this  action. 


CHAPTER  LXXIX. 

COMPLAINTS  IN  ACTIONS  BY  CREDITORS  OF  DE- 
CEASED PERSONS  AGAINST  Hl^IRS, 
LEGATEES  AND  DEVISEES. 


1741.  Complaint  in  action  at  law 

by  corporation  against  leg- 
atees of  a  deceased  stock- 
holder, upon  a  call  made 
after  the  settlement  of  the 
estate  of  the  stockholder 
for  payment  of  the  testa- 
tor's subscription  for  stock. 

1742.  Complaint  in  action  at  law 

by  the  county  judge 
against  the  heirs  of  a 
deceased  surety  upon  a 
probate  bond,  the  default 
in  the  bond  having  accrued 
after  the  settlement  of  the 


estate  of  the  surety. 

1743.  Complaint  in  equitable   ac- 

tion by  creditor  to  recover 
against  heirs  and  charge 
real  estate  received  by 
them  and  set  aside  con- 
veyances thereof  as  fraud- 
ulent, there  having  been  no 
administration  of  the  es- 
tate of  the  debtor.  ^^ 

1744.  Outline  of  complaint  agaifTst 

devisees  of  real  estate. 
(Minnesota). 

1745.  Outline  of  complaint  against 

heirs.    (Minnesota"). 


The  obvious  intent  of  the  statutes  of  the  various  states 
governing  the  settlement  of  the  estates  of  deceased  persons 
is  that  the  claims  of  creditors  shall  all  be  presented  to  and 
allowed  by  the  probate  court,  and  paid  by  the  executor  or 
administrator  out  of  the  non-exempt  property  of  the  estate, 
real  as  well  as  personal,  before  distribution  is  made  to  either 
heirs,  legatees  or  devisees. 

Cases  sometimes  arise,  however,  where  this  result  has  not 
been  accomplished,  either  by  reason  of  entire  lack  of  any 
administration  proceedings,  by  failure  to  take  the  necessary 
steps  to  bar  creditors  in  the  administration  proceedings,  by 
reason  of  the  fact  that  a  contingent  claim  did  not  become 
absolute  until  the  administration  proceedings  had  been 
closed,  and  perhaps  from  other  causes. 

The  statutes  of  Wisconsin  seem  to  provide,  in  substance, 
three  different  remedies  for  cases  of  this  nature: 

(1)  Sections  3269-3273,  inclusive.  Wis.  Stats.  1913,  pro- 
vide for  an  action  at  law  against  the  next  of  kin  or  legatees  of 
the  deceased,  jointly  or  severally,  to  recover  the  value  of 


Introduction.]  1248  [Chapter  LXXIX. 

assets  that  may  have  been  received  by  them  from  the  estate 
of  the  deceased,  provided  that  the  plaintiff  shows  that  he  has 
been  or  will  be  unable  to  collect  his  debt,  or  some  part  there- 
of, in  the  probate  proceedings.  This  action  has  been  held  to 
be  maintainable  by  a  creditor  having  a  contingent  claim 
which  did  not  become  absolute  until  after  the  time  limited 
for  presentation  of  claims  in  the  probate  court  had  expired 
and  the  estate  closed  (Mann  v.  Everts,  64  Wis.  372;  25  N.  W. 
209;  S.  M.  Co.  v.  Murphy,  112  Wis.  614;  88  N.  W.  583), 
also  by  a  creditor  holding  an  absolute  claim  where  the  estate 
of  the  decedent  had  never  been  administered  upon  in  the 
probate  court  (McGonigal  v.  Colter,  32  Wis.  614). 

(2)  Sections  3274-3286,  inclusive,  Wis.  Stats.  1913,  pro- 
vide for  an  action  by  any  contract  creditor  of  a  deceased 
person  against  the  heirs  and  devisees  of  such  person  to  the 
extent  of  the  real  estate  which  has  descended  to  or  been 
devised  to  them.  This  action  must  be  brought  jointly 
against  all  the  heirs  or  devisees.  When  brought  against 
heirs  the  plaintiff  must  show  that  the  personal  assets  of  the 
deceased  were  insufTicient  to  pay  his  debt,  or  that  the  debt 
or  some  part  thereof  can  not  be  collected  by  proceedings  in 
the  probate  court  or  from  the  next  of  kin  or  legatees.  When 
brought  against  devisees  the  plaintiff  must,  in  addition  to 
these  facts,  show  that  the  plaintiff  is  unable  to  collect  his 
debt  by  action  against  the  heirs.  The  judgment  rendered 
is  to  be  apportioned  among  the  defendants  in  proportion 
to  the  value  of  the  real  estate  secured  by  each,  and  the  proper 
portion  docketed  against  each  defendant  individually,  and 
when  so  docketed  becomes  a  lien  on  the  real  estate  which 
descended  or  was  devised  to  him  in  preference  to  other  judg- 
ments for  the  debts  of  the  heir  or  devisee.  When  the  real 
estate  has  been  aliened  to  an  innocent  purchaser  before  the 
filing  of  notice  of  the  pendency  of  the  action  the  judgment 
does  not  affect  it,  but  if  it  be  in  the  hands  of  a  fraudulent 
grantee  such  grantee  may  be  made  a  party  to  the  action  and 
the  property  reached.  Adkins  v.  Loucks,  107  Wis.  587; 
83  N.  W.  934.  This  action  was  said,  in  Blakely  v.  Smock, 
96  Wis.  611;  71  N.  W.  1052,  to  be  purely  a  legal  action,  but 
in  Adkins  v.  Loucks,  supra,  it  was  said  to  be  an  equitable 
action,  no  reference  being  made  to  the  previous  case.  The 
nature  of  the  relief  sought  and  obtainable  in  the  action  would 
seem  to  stamp  upon  it  the  character  of  an  action  in  equity. 


Chapter  LXXIX.]  1249  [Introduction. 

By  the  very  terms  of  the  sections  by  which  it  is  created 
it  is  clear  that  it  can  not  be  maintained  except  when  it  is 
shown  that  no  remedy  can  be  obtained  by  an  action  at  law 
against  next  of  kin  or  legatees,  under  sections  3269-3273. 

(3)  Section  3860  and  3861  Wis.  Stats.  1913  provide  a 
third  remedy  in  case  of  a  contingent  claim  which  becomes 
absolute  at  any  time  after  the  expiration  of  the  time  limited 
for  the  presentation  of  claims  in  county  court.  By  these 
sections  it  is  provided  in  substance  that  such  a  claim  may  be 
presented  to  the  county  court  at  any  time  within  one  year 
after  it  becomes  absolute,  and  if  allowed  the  executor  or 
administrator  shall  pay  it  out  of  any  assets  he  may  then 
have  or  thereafter  obtain,  not  exceeding  the  proportion 
paid  to  other  creditors,  and  if  he  have  not  sufTicient  assets 
to  pay  the  same,  or  the  proper  proportion  thereof,  the 
creditor  may  recover  the  balance  from  the  heirs,  devisees 
or  legatees  who  have  received  property  from  the  estate  that 
was  liable  to  pay  debts  of  the  deceased. 

The  General  Statutes  of  Minnesota  1913  contain  provisions 
quite  similar  to  the  Wisconsin  provisions  before  cited  as  to 
actions  by  creditors  against  heirs,  devisees  or  legatees  of  the 
deceased  who  have  received  real  or  personal  property  from 
the  estate.  Chapter  84,  sees.  8179  to  8194  inclusive.  In  that 
state,  however,  a  contingent  claim  which  becomes  absolute 
at  any  time  before  the  final  settlement  of  the  estate  must  be 
presented  to  that  court  for  allowance  or  be  forever  barred. 
Minn.  Gen.  Stats.  1913  sec.  7323. 

There  are  no  such  provisions  in  Iowa.  The  early  case  of 
Reynolds  v.  May,  4  G.  Greene,  286,  seems  to  hold  that  there 
can  be  no  such  action;  but  in  Janes  v.  Brown,  48  Iowa,  568, 
it  is  said  that  the  question  not  having  been  argued,  will  not 
be  passed  upon.  The  Iowa  Ann.  Code  1897  sec.  3408  pro- 
vides for  an  apportionment  of  costs  in  an  action  against 
heirs  and  devisees  where  the  judgrnent  is  rendered  against 
them  in  proportion  to  the  amounts  received  by  them  from 
the  estate,  and  authorizes  a  tender  by  each  of  his  propor- 
tionate share  of  the  liability,  thus  apparently  recognizing 
that  such  an  action  may  lie  under  some  circumstances. 

In  the  states  of  North  Dakota  and  South  Dakota  the 
statutes  are  practically  identical,  and  require  the  presenta- 
tion of  all  claims  contingent  or  otherwise  to  the  probate  court 
on  penalty  of  being  barred.  If  the  liability  is  not  absolute 
71) 


Introduction.]  1250  [Chapter  LXXIX. 

at  the  time  of  the  final  settlement  the  court  must  order  the 
executor  or  administrator  to  retain  sufficient  assets  in  his 
hands  to  pay  it,  in  North  Dakota  and  in  South  Dakota,  must 
order  the  sum  to  be  paid  into  court  to  await  the  determina- 
tion of  the  question  of  absolute  liability.  N.  Dak.  Rev. 
Codes  1905  sees.  8099  and  8124;  S.  Dak.  P.  C.  1908,  sees. 
170,  296.  In  both  states  there  are  provisions  for  partial 
distribution  of  estates  to  heirs,  devisees,  or  legatees  before 
final  settlement,  upon  their  giving  bond  to  pay  their  pro- 
portion of  the  debts,  if  necessary,  and  for  the  bringing  of  an 
action  upon  such  bond  in  case  of  breach.  N.  Dak.  Rev.  Codes 
1905  sees.  8203  to  8207;  S.  Dak.  P.  C.  1908  sees.  302  to  306. 

In  Nebraska  contingent  claims  may  be  presented  to  the 
commissioners,  and  the  court  may  order  sufficient  assets  to 
be  retained  by  the  administrator  or  executor  to  discharge 
the  claim,  and  if  it  become  absolute  and  be  proven  to  the 
satisfaction  of  the  court  at  any  time  within  two  years  after 
the  time  limited  to  present  claims,  the  creditor  will  be  en- 
titled to  receive  payment  to  the  same  extent  as  other  credi- 
tors, out  of  the  property  retained.  Neb.  R.  S.  1913,  sees. 
1405-1407.  If  a  claim  becomes  absolute  at  any  time  after 
the  time  limited  for  creditors  to  present  claims  it  may  be 
presented  for  allowance  at  any  time  within  one  year  after  it 
becomes  absolute,  and  if  it  be  allowed  by  the  court  the  execu- 
tor or  administrator  will  be  required  to  pay  the  same  or  such 
proportion  as  has  been  paid  to  other  creditors,  if  he  has  suffi- 
cient assets,  and  if  not,  an  action  will  lie  against  heirs, 
devisees  or  legatees  who  have  recovered  sufficient  property 
from  the  estate.  Neb.  R.  S.  1913,  sees.  1408-1412.  This 
action  will  not  lie  until  the  claim  has  been  established 
against  the  administrator  by  proper  legal  proceedings  in 
the  probate  or  other  proper  court.  Bunkworth  v.  Hazlett, 
64  Nebr.  592;  90  N.  W.  537. 

The  various  statutes  governing  the  presentation  of  claims 
against  decedents'  estates  are  cited  in  the  note^ 

1  Ariz.  R.  S.  1913  sec.  883  e/seg.;  1909  sec.  3515  et  seq;  Mont- 
Ark.  Dig.  of  Stats.  1904  sec.  110  Rev.  Codes  1907  sec.  7653  e/ seg.; 
dseq.;  Cal.  C.  C.  P.  1906  sec.  1493  Mo.  R.  S.  1909  sec.  1^0  et  seq.;  Okla. 
et  seq.;  Colo.  Stats.  Ann.  1911  sec.  Comp.  Laws  1909  sec.  5274  et  seq.; 
7206  etseq.;  Idaho  Rev.  Codes  1908  Oregon  Laws  1910  sec.  1238  et  seq.; 
sec.  5460  e/ seg.;  Kans.  Gen.  Stats.  and  484  et  seq.;  Tex.  Civ.   Stats. 


Chapter  LXXIX.]  1251  [Form  1741. 

1741.  Complaint  in  action  at  law  by  corporation  against 
legatees  of  a  deceased  stockholder,  upon  a  call 
made  after  the  settlement  of  the  estate  of  the 
stockholder 'for  payment  of  the  testator's  sub- 
scription for  stock  (precedent  sustained  in  South 
Mil.  Co.  V.  Murphy,  112  Wis.  614;  88  N.  W.  583). 

I.  That  said  plaintiff  is  now,  and  at  all  the  times  herein- 
after mentioned  was,  a  corporation  organized  and  existing 
under  and  by  virtue  of  the  laws  of  the  state  of  Wisconsin. 

II.  That  at  and  prior  to  the  making  of  the  subscription 
to  the  capital  stock  of  said  plaintiff  hereinafter  mentioned, 
the  articles  of  incorporation  of  said  company  were  duly  filed 
and  recorded  with  the  register  of  deeds  of  the  county  of 

,  Wisconsin,  in  which  county  said  company  is  and 

ever  since  its  organization  has  been  located,  and  a  duly  veri- 
fied copy  of  said  articles  duly  filed  with  the  secretary  of 
state  of  the  state  of  Wisconsin. 

III.  That  in  and  by  said  articles  the  capital  stock  of  said 

plaintiff  is  fixed  at  the  sum  of dollars,  divided  into 

....  shares  of dollars  each.  That  before  the  trans- 
action of  any  business  by  the  said  corporation,  with  persons 

other  than  its  members,  more  than per  cent,  of  its 

capital  stock  was  duly  subscribed  in  writing  by  sundry  and 
divers  persons,  and  more  than  ....  per  cent,  of  said  capital 
stock  was  paid  in  in  cash  by  said  subscribers. 

IV.  That  among  other  subscribers  to  the  capital  stock  of 

said  plaintiff  company,  one  X . . . .   Y now  deceased, 

duly  subscribed,  on  or  about  the day  of ,  19. ., 

for  ....  shares  of  said  stock,  of  the  face  value  of 

dollars  per  share,  and  in  and  by  such  subscription  agreed  to 

pay dollars  on  each  share  in  cash,  and  the  balance  of 

such  subscription  as  the  same  should  be  called  by  the  plain- 
tiff. 

V.  That  on  or  about  the day  of ,  19. .,  said 

cash  payment  of dollars  per  share  upon  such  sub- 
scription to  said  capital  stock  was  duly  made  by  each  of  the 
several  subscribers  to  said  sfock,  including  said  X . . . .  Y . . . . 
That  on  or  about  the  ....  day  of 19 . . ,  a  call  of  .... 

Ann.  1913  art.  3458  et  seq.;  Utah      sec.  1470  et  seq.;  Wyo.  Comp.  Stats. 
Comp.  Laws  1907  sec.  3848  et  seq.;      1910  sec.  5595  et  seq.. 
Wash.  Rem.  and  Bal.   Code  1910 


Form  1741.]  1252  [Chapter  LXXIX. 

per  cent,  of  the  face  of  each  subscription  to  said  stock  was 
duly  made  by  the  plaintiff,  and  the  amount  thereof  paid  by 
each  subscriber,  including  said  X. .  . .  Y. . . . 

VI.  That  on  or  about  the  ....  day  of ,  19. .,  said 

X . . . .  Y .  . . .  died  in  the  city  and  county  of ,  Wiscon- 
sin, testate,  being  at  the  time  of  his  death  a  resident  of  and 
freeholder  in  said  county.  That  thereafter  such  proceed- 
ings were  had  in  the  matter  of  the  estate  of  said  X . . .  . 
Y. . . .,  deceased,  in  the  county  court  of  said  county,  that  the 
last  will  of  said  deceased  was  duly  probated,  letters  testa- 
mentary issued  to  the  executors  named  in  said  will,  the 
debts  of  said  deceased  and  legacies  provided  for  in  said  will 
fully  paid,  the  accounts  of  the  executors  allowed,  and  final 
distribution  made  of  the  residue  of  said  estate  to  the  heirs  of 
said  deceased,  in  equal,  undivided  shares,  and  said  executors 
were  fully  discharged.  That  the  final  decree  in  said  estate, 
and  the  final  order  of  distribution  therein,  were  duly  made 

by  said  county  court  on  or  about  the  ....  day  of , 

19. .,  and  that  thereby  all  of  the  residue  of  said  estate  of 
X. . . .  Y. . . .,  deceased,  was  duly  assigned  to  his  children, 

in  equal,  undivided  fifths,  to-wit  [name  the  legatees,  defend- 
ants] who  were  his  heirs  and  the  residuary  legatees  under 
said  will.     That  the  amount  of  the  property  bequeathed 
and  left  to  said  defendants  by  said  last  will  of  said  X .  . . . 

Y. .  . .,  deceased,  and  the  amount  actually  received  by  them 

from  the  estate  of  their  said  ancestor,  as  this  plaintiff  is 
informed  and  verily  believes,  exceeded  the  sum  of  ...... 

dollars. 

VII.  That  subsequent  to  the  death  of  said  X. . . .  Y.  . . . 
and  subsequent  to  the  making  of  the  final  order  of  distribu- 
tion in  the  matter  of  said  estate,  and  the  assignment  of  the 
residue  thereof  to  the  defendants,  a  call  was  duly  made, 
pursuant  to  resolutions  of  the  stockholders  of  said  plaintiff 
company  and  of  the  board  of  directors  of  said  company,  and 
in  pursuance  of  the  by-laws  of  said  company  theretofore 
duly  made  and  adopted,  upon  all  of  the  subscribers  to  the 
capital  stoclc  of  said  plaintiff,  fort ....  per  cent  of  the  face  of 

each  share,  payable  on  the  ....  day  of ,  19.  .,  and 

....  per  cent  of  the  face  of  each  share  payable  on  the  .... 
day  of ,19.. 

VIII.  That  at  the  time  of  the  making  of  said  calls  the  by- 
laws of  said  plaintiff  duly  provided  the  manner  in  which 


Chapter  LXXIX.]  1253  [Form  1742. 

each  subscriber,  and  his  representatives  and  successors  in 
interest,  should  be  notified  of  said  calls,  and  due  notice  was 
given  to  each  of  said  defendants  of  said  calls,  pursuant  to 
said  by-laws,  and  due  demand  made  for  the  payment  there- 
of, but  notwithstanding  said  demand,  the  said  defendants 
have  hitherto  failed  and  neglected  to  pay  the  same  or  any 

part  thereof,  except  the  sum  of dollars. 

WHEREFORE  plaintiff  demands  judgment  against  the 
defendants  for  the  sum  of dollars  and  interest,  to- 
gether with  the  costs  and  disbursements  of  this  action. 

1742.  Complaint  in  action  at  law  by  the  county  judge 
against  the  heirs  of  a  deceased  surety  upon  a 
probate  bond,  the  default  in  the  bond  having 
accrued  after  the  settlement  of  the  estate  of  the 
surety  (adapted  from  complaint  in  Mann.  v. 
Everts,  64  Wis.  372;  25  N.  W.  209). 

STATE  OF  

Court County. 


A. . . .    B. . . .    as  Judge 
of  the  County  Court  of 

County, 

Plaintiff, 
vs. 

C D andE 

F...., 

Defendants. 


The  plaintiff,  complaining  of  the  defendants,  alleges  as 
follows : 

I.  That  the  plaintiff  is  judge  of  the  county  court  of 

county,  Wisconsin,  and  brings  this  action  as  such  judge,  upon 
the  bond  hereinafter  set  forth,  at  the  request  and  for  the  use 
and  benefit  of  M N and  0 P 

II.  Upon  information  and  belief,  that  on  or  about  the 

....  day  of ,  19.  .,  one  J. . . .  K. .  .  .  then  being  an 

inhabitant  of  the  county  of aforesaid,  died  intestate, 

leaving  surviving  him  his  two  children  and  only  heirs  at  law, 
to-wit,  the  aforesaid  M .  .  .  .  N .  .  .  .  and  0 .  .  .  .  P . . . . 

III.  That  on  or  about  the  ....  day  of ,  19. .,  due 

proceedings  in  that  behalf  having  been  first  had,  one  L. . . . 


Form  1742.]  1254  [Chapter  LXXIX. 

M . . , .  was  appointed  by  the  order  of  the  said  county  court 

of county,  administrator  of  the  estate  of  the  said 

J. . . .  K and  then  and  there  duly  qualified  as  such  ad- 
ministrator, and  letters  of  administration  upon  said  estate 
were  thereupon  duly  issued  to  him,  and  he  entered  upon  the 
discharge  of  the  duties  of  his  said  trust.  That  said  J . . . . 
K . . .  .  died  seized  of  the  following  described  lands,  situated 

in  the  said  county  of to-wit,  [describe  lands]  and  that 

said  lands  was  all  of  the  property  left  by  the  said  J . . . . 
K . . .  .  at  the  time  of  his  death. 

IV.  That  afterwards,  and  on  or  about  the  ....  day  of 
,  19. .,  the  said  L. . . .  M. . . .  as  administrator  afore- 
said, petitioned  the  said  county  court  for  leave  to  sell  said 
real  estate  for  the  purpose  of  paying  debts  due  and  owing 
from  the  said  estate  of  said  J . . . .  K . . .  . ,  and  that  upon  due 

proceedings   being   had   the   said   county  court  of    

county,  on  or  about  the  ....  day  of ,  19. .,  made  and 

entered  an  order  granting  the  prayer  of  said  petition,  and 
licensed  the  said  L . . . .  M . . . .  as  administrator  aforesaid 
to  sell  the    said   real    estate  and  required   him,    the    said 

L M before    making    such    sale,   to  take  and 

subscribe    an   oath    as    required    by   law,    and   to   give  a 

bond  to  the  judge  of  said  court  in  the  sum  of dollars, 

with  sufficient  sureties  to  be  approved  by  said  judge,  to  ac- 
count for  the  proceeds  of  such  sale,  and  to  dispose  of  the 
same  according  to  law. 

V.  That  thereupon  the  said  L . . . .  M . . . .  as  administra- 
tor aforesaid,  did  take  and  subscribe  such  oath,  and  on  or 

about  the day  of ,  19 . . ,  the  said  L M 

as  principal,  and  one  W . . . .  X . . . .  and  one  Y . . . .  Z . . . . ,  as 
sureties,  did  make,  execute  and  deliver  to  the  judge  of  said 

county  court  their  bond  in  the  penal  sum  of dollars, 

as  required  by  said  order,  of  which  bond  the  following  is  a 
copy  [insert  copy  of  bond]. 

VI.  That  said  bond,  and  the  sureties  thereon,  were  by 
the  judge  of  said  court  thereupon  filed  and  approved,  and 

that  thereafter,  and  on  or  about  the   ....   day  of   , 

19. .,  the  said  L. . . .  M. . . .  as  administrator,  pursuant  to 
said  license,  sold  said  land  and  received  therefor  the  sum  of 

dollars,  and  such  sale  was  thereafter  duly  approved 

by  said  county  court. 


Chapter  LXXIX.]  1-255  [Form  1742. 

VII.     That   the   said   L....    M as   administrator 

aforesaid,  did  not  justly  and  truly  account  for  the  proceeds 
of  the  sale  of  such  real  estate,  and  did  not  dispose  of  the  same 
according  to  law,  and  failed  to  make  or  file  any  account  of 

his  administration  until  on  or  about  the day  of , 

19. .,  at  which  time  he  was  cited  by  the  said  county  court 
to  appear  and  file  his  account  of  the  proceeds  of  the  said 
sale  and  the  property  received  by  him  as  administrator  as 
aforesaid.  That  said  L....  M....  accordingly  filed  an 
account  with  the  said  court  to  which  objections  were  there- 
after filed  by  the  heirs  of  said  J . . . .  K . . . . ,  and  said  matter 

was  thereupon  tried  by  the  said court,  which  court 

rendered  judgment  against  the  said  L. . . .  M. . . .  disallow- 
ing said  account  in  part  and  adjudging  that  the  said  L. . . . 

M . . . .  had  failed  to  account  for  the  sum  of dollars, 

and  interest  thereon  from  the  ....  day  of ,  19 . .,  and 

that  he  stood  charged  with  said  sum  and  interest,  upon  his 
account  as  aforesaid,  which  judgment  still  stands  unreversed 
and  unappealed  from,  and  has  never  been  paid. 

VI IT.     That  thereafter,   on   or  about  the    ....    day  of 

,  19..,M N and  0 P applied  to  the 

said  county  court  for  leave  to  sue  upon  the  bond  of  the  said 
L. . . .  M . . .  .  hereinbefore  set  forth,  and  on  the  same  day  the 
said  court  granted  leave  to  the  said  M . . . .  N . . . .  and  O . . . . 
P . . . .  to  sue  upon  said  bond  in  the  name  of  this  plaintiff. 

IX.  Upon  information  and  belief,  that  both  said  W. . . . 
X . . . .  and  Y . . . .  Z died  long  prior  to  the  commence- 
ment of  this  action,  and  prior  to  the  said  judgment  upon  said 
bond.     That  said  W. . . .  X. . . .  died  on  or  about  the  .... 

day  of ,  19. .,  then  being  an  inhabitant  of  the  said 

county  of That  due  proceedings  in  that  behalf  hav- 
ing been  first  had,  the  said  county  court  of county, 

on  or  about  the  ....  day  of ,  19 . .,  duly  issued  letters 

of  administration  on  the  estate  of  the  said  W. .  . .  X.  . . . 
to  one  G. .  . .  H. . . .,  who  thereupon  duly  qualified  as  such 
administrator  and  entered  upon  the  duties  of  his  office. 

X.  That  said  W. . . .  X.  . . .  left  him  surviving  the  de- 
fendants C. . .  .  D and  E F ,  his  children  and 

only  heirs  at  law,  and  that  he  died  seized  and  possessed  of 

personal  property  to  the  amount  and  value  of dollars, 

and  the  owner  in  fee  simple  of  the  following  described  real 
estate  [describe  the  real  estate  sought  to  be  charged].   That  said 


Form  1742.]  1256  [Chapter  LXXIX. 

W. . . .  X. . . .  had  no  other  property,  to  the  knowledge  or 
information  of  this  plaintiff,  and  that  there  were  duly  proved 
and  allowed  by  the  said  county  court  claims  against  the 

estate  of  the  said  W . . . ,  X . . . .  to  the  amount  of 

dollars,  which  claims  were  fully  paid  by  the  said  adminis- 
trator out  of  the  proceeds  of  the  personal  property  left  by 
Ihe  said  W . . . .  X .... ,  and  exhausted  the  entire  amount  of 
the  personal  property  so  left. 

XI.  That  upon  the  payment  of  said  claims  the  said  G . . .  . 

H ,  as  administrator  aforesaid,  petitioned  said  court  for 

the  final  settlement  of  said  estate  and  to  be  discharged  as 
administrator,  and  that  such  proceedings  were  thereafter 
had  upon  said  petition  that  on  or  about  the   ....   day  of 

,  19. .,  a  final  decree  was  entered  by  the  said  county 

court  distributing  the  said  real  estate  to  the  said  defendants 
C. . . .  D. . . .  and  E,  .  .  .F. . . .,  share  and  share  alike,  and 
said  estate  was  then  and  there  adjudged  to  be  finally  settled, 
and  the  said  administrator  G. .  . .  H....  was  discharged. 
[//  should  appear  that  this  discharge  took  place  before  the 
adjudication  upon  the  bond  hereinbefore  set  forth.] 

XII.  That  the  said  Y. . .  .  Z.  . . .,  the  other  surety  upon 
the  said  bond,  died  leaving  no  property,  either  real  or  per- 
sonal, and  that  this  plaintiff  has  no  remedy  to  recover  the 
amount  found  due  upon  the  said  bond  except  the  remedy 
which  he  seeks  to  enforce  in  this  action.  That  the  said  real 
estate  assigned,  as  aforesaid,  to  the  defendants,  was  at  the 
time  said  assignment  was  made  and  still  is  of  the  value  of 
dollars. 

XIII.  That  prior  to  the  commencement  of  this  action 
the  said  M  . , . .  N . .  . .  and  0 . . . .  P . . . .  demanded  of  the 
said  defendants  that  they  pay  the  amount  so  adjudged  to  be 
due  from  the  said  L , .  .  .  M .  .  .  .  as  administrator  aforesaid 
upon  said  bond,  and  that  said  defendants  refused  to  pay  the 
same  or  any  part  thereof. 

WHEREFORE  this  plaintiff  demands  judgment  against 

the  said  defendants  for  the  sum  of dollars,  and  interest 

thereon  from  the  ....  day  of ,  19. .,  with  costs,  and 

that  the  said  sum  be  adjudged  a  lien  on  the  real  estate  so 
assigned  to  and  held  by  the  said  defendants  as  aforesaid, 
and  that  the  plaintiff  have  such  other  and  further  relief  as 
may  be  just  and  equitable. 


Chapter  LXXIX.]  1257  '         [Form  1743. 

1743.  Complaint  in  equitable  action  by  creditor  to  re- 
cover against  heirs  and  charge  real  estate  re- 
ceived by  them  and  set  aside  conveyances 
thereof  as  fraudulent,  there  having  been  no  ad- 
ministration of  the  estate  of  the  debtor  (adapted 
from  complaint  in  Adkins  v.  Loucks,  107  Wis. 
587;  83  N.  W  934). 

STATE  OF  

Court County. 


A 

•  •  •  • 

B...., 

Plaintiff, 
vs. 

C 

•  •  •  • 

D ,     E 

P.. 

..      and      G 

H.. 

•  •» 

Defendants. 

The  plaintiff,  complaining  of  the  defendants,  alleges: 

I.  That  one  L . . . .  M . . . .  [deceased  debtor]  on  or  about  the 

....  day  of ,  19 . .,  for  value  received,  made,  executed 

and  delivered  to  this  plaintiff  his  promissory  note  in  writing, 
of  which  the  following  is  a  copy  [insert  copy  of  note];  that  no 
part  of  said  note  has  been  paid  [except,  etc.],  that  the  plaintiff 
is  still  the  owner  and  holder  thereof,  and  that  there  is  now 

due  and  owing  to  him  thereon  the  sum  of dollars, 

with  interest  from ,  19 .  .  [or  otherwise  set  forth  cause 

of  action  on  contract  against  deceased,  according  to  the  fact]. 

II.  Upon  information  and  belief,  that  the  said  L.... 

M . . . .  removed  from  this  state  to  the  state  of in  the 

month  of ,  19.  .,  and  has  never  returned  to  this  state 

but  remained  a  resident  of  said  state  of until  his  death 

as  hereinafter  set  forth,  and  that  this  plaintiff  has  been  at 
all  times  since  the  execution  of  said  note,  and  now  is,  a  resi- 
dent of  this  state. 

III.  Upon  information  and  belief,  that  said  L. . . .  M. . . . 

died  intestate  in  the  said  estate  of in  the  month  of 

19. .,  and  left  him  surviving  the  defendants  C. . . . 

D and  E F. . . .  his  children  and  only  heirs  at  law. 

That  the  said  L M left  no  personal  property  within 


Form  1743.1  1258  [Chapter  LXXIX. 

this  state,  but  was  at  the  time  of  his  death  the  owner  in  fee 
of  the  following  described  real  estate  situated  in  the  county 

of in  this  state,  viz.  [insert  description],  and  that  upon 

the  death  of  the  said  L M the  title  to  the  said  real 

estate  descended  in  equal  shares  to  the  said  C . . . .  D . . . . 
and  E . . . .  F . . . .  and  that  said  real  estate  was  and  is  of  the 
value  of dollars. 

IV.  That  no  administration  upon  the  estate  of  said  L. . . . 

M has  been  granted  or  had  in  this  state,  and  that  this 

plaintiff  has  been  and  will  be  unable  with  due  diligence  to 
collect  his  said  debt,  or  any  part  thereof,  by  proceedings  in 

the  county  court  of  said county  [name  county  where 

real  estate  is  situated],  or  from  any  personal  representatives  of 
said  L . , . .  M . . . .  or  from  any  other  person  except  as  he 
may  collect  the  same  from  the  defendants  in  this  action. 

V.  That  on  or  about  the  ....  day  of ,  19. .,  and 

before  the  commencement  of  this  action,  the  said  defend- 
ants C . . . .  D . . . .  and  E . . . .  F .  . . .  well  knowing  of  the 
plaintiff's  said  claim  against  the  estate  of  said  L. . . .  M. . . . 
and  against  their  interests  in  said  land,  and  with  the  fraudu- 
lent intent  to  defeat  said  claim  and  prevent  the  plaintiff 
from  ever  recovering  the  same  in  any  way,  executed  and 
delivered  to  the  defendant  G . . . .  H . . . .  without  considera- 
tion [or  state  the  consideration]  a  warranty  deed  of  said  real 
estate,  which  deed  was  received  by  the  said  G . . . .  H . . . . 
with  full  knowledge  of  the  plaintiff's  said  claims  and  with 
knowledge  also  of  the  fraudulent  intent  of  the  defendants 
G . . , .  D . , . .  and  E ....  F ....  in  making  the  same,  in  which 
intent- the  said  G....  H....  participated,  and  that  said 
G . . . .  H . . . .  still  holds  the  apparent  title  to  said  land  [or,  if 
the  transfer  was  merely  colorable  or  accompanied  by  a  secret 
arrangement  to  hold  the  land  in  trust,  set  forth  the  facts  as  it  is 
expected  to  prove  the  same]. 

WHEREFORE  the  plaintiff  demands  judgment  against 
the  said  defendants  G . . . .  D . . . .  and  E . , . .  F , . . .  for  the 
amount  due  on  said  note,  with  costs,  to-wit,  the  sum  of 
dollars,  with  interest  from ,  19 . . ,  to  be  appor- 
tioned between  the  said  defendants  in  equal  shares;  that  the 
said  conveyance  to  said  G .  . .  .  H . . .  .  be  set  aside  and  de- 
clared void;  and  that  the  said  personal  judgments  be  de- 
clared liens  upon  the  interests  of  the  said  C . . . .  D . . . .  and 
E . , . .  F . . . .  in  said  real  estate ;  and  that  said  real  estate  be 


Chapter  LXXIX.]  1259  [Forms  1744,  1745. 

sold  to  satisfy  the  same;  and  for  such  other  and  further  re- 
lief as  may  be  just  and  equitable. 


1744.  Outline  of  complaint  against  devisees  of  real  es- 

tate (Minn.  Gen.  Stats.  1913  sec.  8182). 

I  I.  [Allege  a  claim  against  decedent,  in  plaintijfs  favor, 
not  provable  in  the  probate  court,  setting  forth  the  claim  as  in  a 
pleading.] 

i  II.  [Allege  death  of  decedent  testate,  the  admission  of  his 
will  to  probate,  the  appointment  of  executor,  his  due 
qualifications  and  administration  of  the  estate,  his  discharge 
by  the  probate  court  and  the  closing  of  the  administration 
proceedings.] 

1  III.  [Allege  that  defendants  are  the  sole  devisees  and  that 
the  lands  devised  have  been  duly  assigned  to  them  by  decree  of 
the  probate  court,  describing  the  lands  and  giving  legal  effect 
of  the  decree  of  distribution,  or  attaching  a  copy  of  the  decree.] 
,'     IV.     [Give  value  of  the  real  estate  devised  to  each  defendant.] 

V.  [Allege  that  there  are  no  personal  assets  of  the  estate 
applicable  to  the  plaintiff's  claim  and  state  reason  therefor, 
for  example  that  they  have  been  applied  to  pay  expenses  of 
administration  or  to  claims  of  a  prior  class,  etc.] 

VI.  [State  why  plaintiff's  claim  is  not  provable  in  the  pro- 
bate court.] 

VII.  That  by  reason  of  the  premises  and  of  the  statutes 
in  such  case  provided  defendants  are  indebted  to  plaintiff 
for  his  said  claim,  and  interest  accrued  thereon,  in  the  sum 

of dollars  in  the  following  proportions  and  amounts: 

[specify  amounts  due  from  each  defendant.] 

WHEREFORE  plaintiff  demands  judgment  against  de- 
fendants in  the  several  amounts  aforesaid,  with  costs  appor- 
tioned as  provided  by  statute,  and  that  the  same  be  levied 
upon  the  said  realty  of  each. 

1745.  Outline  of  complaint  against  heirs  (Minn.  Gen. 

Stats.  1913  sec.  8182). 

I.  [As  in  last  preceding  form.] 

II.  [Allege  death  of  decedent  intestate,  issuance  of  letters 
of  administration  and  closing  of  the  estate.] 


Form  1745.]  1260  [Chapter  LXXIX. 

III.  [Allege  that  the  defendants,  naming  them,  are  the  sole 
heirs  at  law,  and  allege  the  rendering  of  the  final  decree  of 
distribution,  attaching  a  copy,  or  pleading  its  legal  effect.] 

IV.  [State  the  value  of  the  real  estate  assigned  to  each  de- 
fendant.] 

V.  VI,  and  VII.    [As  in  last  preceding  form.] 
WHEREFORE,  etc.     [Demand  for  Judgment  as  in  last 

preceding  form]. 


CHAPTER  LXXX. 

COMPLAINTS   IN  ACTIONS   IN  THE  NATURE   OF 
QUO    WARRANTO    AND    ACTIONS    TO 
VACATE  CORPORATE  CHARTERS. 


1746.  Complaint  by  private  person 

for  usurpation  of  elective 
local  office.     (Wisconsin). 

1747.  The  same,  for  use  in  juris- 

dictions where  it  is  not 
necessary  to  state  the 
number  of  legal  votes  given 
nor  the  specific  illegalities 
claimed. 

1748.  Complaint  for  usurpation  of 

an  office  not  elective. 

1749.  Complaint  by  private  person 

for  usurpation  of  appoint- 
ive state  office,  by  one  not 
a  citizen. 

1750.  Complaint  by  taxpayer  for 

usurpation  of  county  office 
by  person  elected  but  not 
eligible. 

1751.  Complaint    by    property 

owner  against  commercial 
railroad  company,  chal- 
lenging its  right  to  exercise 
franchise  to  build  an  ele- 
vated road,  formally 
granted  to  it  without  au- 
thority of  law  by  a  city. 

1752.  Complaint  by  taxpayer  of  a 

village    illegally    incorpo- 


rated against  the  village 
and  its  officers,  challenging 
the  corporate  existence  of 
the  supposed  village,  and 
praying  that  the  alleged 
village  officers  be  ousted. 

1753.  Complaint  in  action  by  attor- 

ney-general or  state's  at- 
torney to  forfeit  franchises 
of  a  street  railway  com- 
pany and  vacate  its 
charter,  because  of  failure 
to  perform  its  duties. 

1754.  Complaint  by  attorney-gen- 

eral or  state's  attorney  to 
vacate  corporate  charter 
for  violation  of  law. 

1755.  The    same,    for    failure    to 

exercise  its  powers. 

1756.  Outline     of     complaint    for 

violation  of  law  by  enter- 
ing a  combination  in  re- 
straint of  trade.  (Wis- 
consin). 

1757.  Allegation  of  application  to 

attorney-general  to  com- 
mence action,  and  his 
refusal. 


The  ancient  common-law  writ  of  quo  warranto  was  a  high 
prerogative  writ  by  which  one  who  had  usurped  an  office,  or 
franchise,  or  had  forfeited  it  by  neglect  or  misuse  was  called 
into  court  by  the  king  and  required  to  show  by  what  author- 
ity he  claimed  to  exercise  it.  The  use  of  this  writ  became 
obsolete  so  early  in  the  English  law  that  it  is  impossible  now 
to  fix  the  time,  and  was  succeeded  by  the  crimiral  informa- 


Introduction.]  1262  [Chapter  LXXX. 

tion  in  the  nature  of  quo  warranto.  In  most  of  the  American 
states  the  terms  "quo  warranto"  and  "information  in  the 
nature  of  quo  warranto''  are  used  as  synonymous  and  as 
referring  not  to  the  ancient  and  obsolete  writ  but  to  the 
information.  State  v.  West  Wisconsin  Ry.  Co.,  34  Wis.  211; 
State  V.  Minn.  Thresher  Co.,  40  Minn.  213;  41  N.  W.  1020. 

Where  a  constitution  or. statute  confers  upon  any  court  the 
right  to  use  the  writ  of  quo  warranto  it  is  deemed  to  refer  to 
the  information  in  the  nature  of  quo  warranto.  The  ancient 
writ  was  a  civil  remedy,  brought  by  the  king  to  oust  a  usurper 
or  take  away  a  franchise;  the  information  was  originally  a 
criminal  proceeding  to  punish  the  offender  by  fme,  but  is  now 
generally  regarded  as  criminal  only  when  brought  by  the 
attorney-general  on  his  own  information,  and  when  brought 
by  private  parties  in  the  cases  allowed  by  statute  it  is  regard- 
ed as  a  civil  action  though  it  may  be  brought  in  the  name  of 
the  state.    State  v.  Baker,  38  Wis.  71. 

The  constitution  of  some  states  grants  to  courts  of  general 
jurisdiction  and  to  the  appellate  courts  expressly  or  by 
necessary  implication  the  right  to  issue  the  writ,  meaning 
thereby  the  right  to  use  the  remedy  by  information,  and  in 
such  states  the  right  can  not  be  taken  away  by  statute. 
State  V.  Baker,  supra.  Statutory  actions  by  which  substan- 
tially the  same  relief  may  be  obtained  as  by  the  common-law 
information  have  been  provided  in  the  following  states,  and 
it  is  to  these  actions  that  the  forms  used  in  the  present 
chapter  are  adapted:  Wis.  Stats.  1913,  chapter  149  sees. 
3464  et  seq.;  Minn.  Gen.  Stats.  1913,  sec.  8253  et  seq.; 
N.  Dak.  Rev.  Codes  1905,  sees.  7349  et  seq.;  S.  Dak.  C.  C.  P. 
1908,  chapter  26  sees.  570  et  seq.;  Iowa  Ann.  Codes  1897  sees. 
4313  et  seq. 

The  information  in  the  nature  of  quo  warranto  is  preserved 
by  name  and  its  use  regulated  in  Nebraska.  Neb.  R.  S.  1913 
sec.  8328  et  seq. 

In  all  cases  where  a  statute  requires  that  leave  be  ob- 
tained to  bring  the  action,  or  that  application  be  first  made 
to  a  public  officer,  the  fact  of  the  obtaining  of  such  leave  or 
the  making  of  such  application  and  the  refusal  thereof 
should  be  alleged  in  the  complaint  or  relation. 


Chapter  LXXX.] 


1263 


[Form  1746. 


The  statutes  governing  quo  warranto  in  the  states  not  here- 
inabove referred  to  are  cited  in  the  note  ^ 


1746.    Complaint  by  private  person  for  usurpation  of 
elective  local  office  (Wis.  Stats.  1913  sec.  3466). 

STATE    OF    WISCONSIN 
Court, County 


The  State  of  Wisconsin,  upon 
the  complaint  [or  relation] 

of  A B , 

Plaintiff, 


vs. 


C D 


Defendant. 


The  plaintiff  [or  relator]  who  brings  this  action  in  the  name 
of  the  state,  complaining  of  the  defendant,  respectfully 
alleges: 

I.  That  at  a  general  [or  municipal]  election  duly  called 

and  held  in  the  county  of [or  city,  or  town]  pursuant 

to  law,  on  the  ....  day  of ,  19. .,  for  the  election, 

among  other  officers,  of  a  [name  office],  for  the  term  of  .... 

years  from ,  19.  .,  there  were  duly  cast  [state  number, 

as:  two  thousand  and  forty-five  (2045)]  legal  votes  for  said 
office  for  the  relator,  and  [state  number]  legal  votes  and  no 
more  for  the  defendant,  and  that  there  were  no  other  legal 
votes  cast  for  said  office  at  said  election,  and  that  the  relator 
was  thereby  duly  elected  to  said  office. 

II.  That  notwithstanding  the  fact  that  the  relator  was 
legally  and  duly  elected  to  said  office  as  aforesaid,  the  can- 
vassing board  of  said  county  [or  city,  or  town]  on  the  .... 


>Ariz.  R.  S.  1913  sec.  1596-1602; 
Ark.  Dig.  of  Stats.  1901  sec.  7983- 
7989;  Cal.  C.  C.  P.  1906  sec.  803- 
810;  Colo.  Code  Ann.  1911  sec. 
320-329;  Idaho  Rev  Codes  1908  sec. 
4612-4619;  Kans.  Gen.  Stats.  1909 
sees.  6275-6282;  Mont.  Rev,  Codes 
1907  sees.  6943-6968;  Mo.  R.  S.  1909 


sees.  2631-2636;  Okla.  Comp.  Laws 

1909  sees.  6190-6195;  Oregon  Laws 

1910  sees.  363-377;  Tex.  Civ.  Stats. 
Ann.  1913  art.  6398-6404;  Utah 
Comp.  Laws  1907  sec.  3609-3626; 
Wash.  Rem.  and  Bal.  Code  1910 
sec.  1034-1048;  Wyo.  Comp.  Stats. 
1910  sec.  5073-5106. 


Form  1746.]  1264  [Chapter  LXXX. 

day  of 19. .,  proceeded  to  canvass  said  returns  and 

to  make  a  statement  thereof,  and  erroneously  and  illegally 
determined  thereby  that  the  said  C. . . .  D . . . .  had  received 

legal  votes,  and  the  said  A . . . .  B . . . .  but  ....  legal 

votes,  and  unlawfully  determined  that  the  said  C . . . .  D . . . . 
had  received  the  greatest  number  of  votes  and  was  elected 
to  said  office  of ,  and  thereupon,  on  said  day,  unlaw- 
fully made  out  and  delivered  to  said  G . . . .  D . . . .  an  illegal 
certificate  of  election  to  the  effect  that  said  G . . . .  D .  . . .  had 
received  the  greatest  number  of  votes  for  said  office  and  was 
duly  elected  thereto. 

III.  That  in  truth  and  in  fact  the  said  A. . . .  B . . . .  re- 
ceived the  greatest  number  of  legal  votes  cast  for  said  office 
at  said  election;  that  forty-five  of  the  votes  so  counted  for 
the  said  G . . . .  D . . . .  were  illegally  cast  by  persons  not 
entitled  to  vote  at  said  election,  to-wit: 

In  the  town  of [or  in  the ward]  one  of  the 

election  districts  of  said  county  [or  city]  E . . . . ,  F . . . .  and 

G whose  votes  were  cast  and  counted  for  the  defendant 

were  minors  under  the  age  of  twenty-one  years,  and  X. . . ., 
Y. . . .,  etc.,  whose  votes  were  so  cast  and  counted,  were  not 
at  the  time  of  casting  said  votes  duly  qualified  electors, 
but  were  persons  of  foreign  birth  who  were  not  citizens  of  the 
United  States  or  of  the  State  of  Wisconsin,  and  had  never 
been  naturalized  by  their  own  act  or  by  the  act  of  their 
parents,  and  had  never  declared  their  intention  to  become 
citizens  of  the  United  States. 

In  the  town  of [or  in  the  said ward],  one  of 

the  election  districts  of  said  county  [or  city],  L.  .  .  .  M .  .  .  ., 
N. . . .,  etc.,  whose  votes  were  so  cast  and  counted,  were  not 
at  the  time  entitled  to  vote  in  said  election  district,  as  they 
did  not  in  fact  actually  reside  in  said  district,  and  never  had 
resided  therein. 

[Allege  any  other  illegal  votes  cast  for  defendant,  giving 
names  and  grounds  of  illegality  specifically.  Wis.  Stats.  1913 
sec.  3468.] 

[If  relator  has  qualified  for  the  office,  set  forth  the  facts  as 
follows,  although  the  qualification  before  action  seems  not 
necessary  under  Wis.  Stats.  1913  sec.  3471.] 

IV.  That  on  the  ....  day  of ,  19. .,  the  said  re- 
lator duly  qualified  as  such by  taking  and  subscribing 

the  oath  of  office  as  required  by  the  constitution  and  laws  of 


Chapter  LXXX.]  1265  [Form  1747. 

this  state,  and  filing  the  same  with  0 . . . .  P and  by  duly 

executing  the  official  bond,  with  sureties,  in  manner,  form 

and  substance  as  required  by  law,  in  the  sum  of 

dollars. 

V.  That  on  the day  of ,  19 . . ,  the  said  defend- 
ant usurped  and  intruded  into  the  said  office  of of 

said  county  [or  city],  and  has  ever  since  unlawfully  exercised 
the  same  and  excluded  the  relator  therefrom,  and  withheld, 
and  still  withholds,  the  same  and  the  fees  and  emoluments 
thereof  from   him. 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
said  C. . . .  D. . . .  be  adjudged  guilty  of  usurping,  intruding 
into  and  unlawfully  holding  said  office,  and  that  he  be  ex- 
cluded from  the  same  and  the  privileges  and  franchises 
thereof;  that  the  said  A. . . .  R . . . .  be  entitled  to  have,  hold 
and  exercise  said  office,  by  virtue  of  said  election;  that  the 
plaintiff  recover  the  costs  of  this  action. 

1747.  The  same,  for  use  in  jurisdictions  where  it  is  not 
necessary  to  state  the  number  of  legal  votes 
given  nor  the  specific  illegalities  claimed  (1  Ab- 
bott's Forms,  form  697). 

I.  That  on  the day  of 19. .,  at  an  election 

duly  held  in  the  [designate  the  county  or  district]  of  this  state, 
pursuant  to  the  statute,  for  the  election,  among  other  officers, 
of  [name  officer]  for  the  term  of  ... .  years  from  the  ....  day 

of ,  19. .,  the  said  A. . . .  R.  . . .  received  the  greatest 

number  of  legal  votes  [or  the  majority,  according  to  the 
statute]  for  the  said  office,  and  was  duly  elected. 

II.  That  on  the  ....  day  of ,  19. .,  the  defendant 

usurped  the  said  office,  and  has  ever  since  unlawfully  exer- 
cised the  same,  and  withheld  the  same  from  the  said  [re- 
lator]. 

WHEREFORE  the  plaintiff  demands  judgment,  with 
costs,  that  the  defendant  is  not  entitled  to  the  said  office, 
and  that  he  be  ousted  therefrom;  that  the  said  [relator]  is 
entitled  to  the  office,  and  to  assume  the  execution  of  the 
duties  of  the  same  on  taking  the  oath  and  filing  the  bond 
prescribed  by  law. 
80 


Form  1748.]  1266  [Chapter  LXXX. 

1748.     Complaint  for  usurpation  of  an  office  not  elective 
(1  Abbott's  Forms,  form  698). 

I.  That  at  the  times  hereafter  mentioned,  in  the  munici- 
pal corporation  entitled there  was,  and  still  is,  an 

executive  department  created  and  existing  under  the  laws 
of  this  state,  known  as  the  street  department,  the  chief 
officer  of  which  department  is  called  the  street  commissioner, 
which  office  of  street  commissioner  was  and  is  a  public  office 
in  said  city. 

IT.     That  in  the  month  of ,  19.  .,  one  J. . . .  S. . .. 

was  duly  elected  to  said  office  for  the  term  of  ... .  years  from 

the  ....  day  of ,  19.  .,  and  on  said  day  entered  upon 

the  duties  of  said  office,  and  discharged  the  duties  thereof 

until  the  ....  day  of ,  19.  .,  when  he  died,  whereby 

the  office  became,  and  thence,  until  and  at  the  time  of  the 
appointment  hereinafter  referred  to,  continued  vacant. 

III.  That  after  said  death,  and  on  the  ....  day  of , 

19..,  the  said  [relator]  was  appointed  to  said  office  by  the 
mayor  of  said  city,  with  the  advice  and  consent  of  the  board 
of  aldermen  of  said  city,  and  thereafter,  and  on  the  same  day, 
in  due  form  of  law,  and  according  to  the  ordinances  of  the 
corporation  of  said  city,  he  gave  sufficient  security  for  the 
performance  of  his  duties  as  such  street  commissioner,  in 
the  form  and  amount  for  that  purpose  prescribed  by  the 
said  ordinances,  and  took  and  subscribed,  before  the  mayor 
of  said  city,  and  filed  his  oath  in  the  following  form  [copy 
oath].  And  that  he  accepted  such  appointment,  and  in  all 
respects  quafified  himself  to  assume  such  office,  and  perform 
the  duties  thereof. 

IV.  That  the  defendant,  claiming  to  have  been  appointed 

by  the  governor  of  the  state  of to  fill  the  aforesaid 

vacancy,  created  by  the  death  of  said  J . . . .  S . . . .  and 
without  any  other  or  any  legal  warrant,  right,  or  grant 
whatever,  intruded  into  and  usurped  said  office,  and  still 
unlawfully  holds  and  exercises  the  same. 

WHEREFORE,   etc.   [as  in   last  preceding  form]. 


Chapter  LXXX.]  1267  [Form  1749. 

1749.  Complairt  by  private  person  for  usurpation  of  ap- 
pointive state  office,  by  one  not  a  citizen  (from 
State  V.  McDonald,  108  Wis.  8;  84  N.  W.  171). 

[Title.] 

The  relator  above  named,  who  brings  this  action  in  the 
name  of  the  state  of  Wisconsin,  complains  and  alleges: 

I.  That  in  the  month  of  April  in  the  year  19 .  . ,  said  A 

B . . . .  was  duly  appointed  by  the  governor  of  Wisconsin  to 

the  office  of for  the  ....  district  of  Wisconsin,  and 

during  the  same  month,  in  pursuance  of  appointment  afore- 
said, duly  qualified  as  such  officer  and  continued  to  occupy 
and  exercise  said  office  up  to  and  including  the  month  of 

,  19.  .,  and  has  always  been  and  now  is  entitled  to 

said  office. 

II.  That  in  the  month  of ,  19..,  and  as  affiiant 

is  inform.ed  and  believes,  on  the  ....  day  of ,  19 . . ,  the 

defendant  C . . . .  D . . . .  was  appointed  to  said  office  by  the 
governor  of  said  state  of  Wisconsin,  and  on  or  about  the 
....  day  of ,  19.  .,  attempted  to  qualify  therein. 

III.  That  at  the  time  of  his  said  appointment,  said  C . . . . 
D . . . .  was  not  a  citizen  of  the  state  of  Wisconsin.   That  up 

to  the  ....  day  of 19 . . ,  he  was  a  subject  of  the  queen 

of  Great  Britain.  That  on  said  last  named  date  said  C. . . . 
D . . . .  completed  his  naturalization  as  a  citizen  of  the  United 

States  in  the  district  court  of county,  Minnesota,  at 

which  time  he  renounced  his  allegiance  to  the  queen  of  Great 
Britain  and  was  declared   and  adjudged  by  said   district 

court  of county,  Minnesota,  to  be  a  citizen  of  the 

United  States.  That  thereafter,  said  defendant  continued 
to  be,  and  as  complainant  is  informed  and  believes  is  now 
and  was  at  the  time  of  his  said  appointment  to  said  office, 
a  citizen  of  the  state  of  Minnesota.  That  a  few  days  before 
his  said  appointment — the  exact  number  of  days  is  unknown 
to  the  complainant,  but  as  said  complainant  is  informed 

and  believes,  in  the  month  of ,  19. ., — said  defendant 

became  a  candidate  for  said  office  then  held  and  exercised 
by  the  complainant.  That  said  defendant,  knowing  that  it 
was  necessary  under  the  laws  of  the  state  of  Wisconsin  to 
be  a  citizen  of  Wisconsin  in  order  to  be  eligible  to  said  office, 
immediately  thereafter  pretended  to  take  up  a  residence  in 
the  city  of ,  in county,  Wisconsin.  That  before 


Form  1749.]  1268  [Chapter  LXXX. 

said  time  said  defendant  was  a  resident  and  citizen  of  the 
state  of  Minnesota.  That  said  action  of  defendant  was 
solely  and  wholly  to  obtain  said  ofTice.  That  said  defendant 
at  the  time  he  pretended  to  take  up  said  residence  in  Wis- 
consin, and  up  to  the  time  of  his  appointment,  had  no  in- 
tention of  taking  up  a  permanent  residence  in  said  state  of 
Wisconsin,  or  of  becoming  a  citizen  of  said  state  of  Wis- 
consin, nor  at  the  time  of  his  said  appointment  did  said 
defendant  have  any  intention  of  permanently  residing  in 
said  state  or  of  being  a  citizen  of  said  state.  That  at  the  time 
said  defendant  took  up  said  pretended  residence  in  the  state 
of  Wisconsin  as  aforesaid,  during  the  time  of  his  said  pre- 
tended residence  in  Wisconsin,  and  up  to  the  time  of  his 
appointment  to  said  office,  said  defendant  intended  to  leave 
the  state  of  Wisconsin  and  return  to  the  state  of  Minnesota, 
in  case  he  should  be  unsuccessful  in  his  candidacy  for  said 
office.  That  said  action  of  defendant  in  so  moving  into 
Wisconsin  was  a  mere  subterfuge  and  makeshift  to  bring 
him  apparently  within  the  requirements  of  the  law  as  to 
citizenship  in  order  to  hold  said  office. 

IV.  That  on  or  about  the  ....  day  of ,  19. .,  and 

after  said  defendant  had  attempted  to  qualify  in  said  office, 
said  complainant,  A....  B....,  delivered  to  defendant 
most  of  the  books  and  efTects  pertaining  to  said  office  and 
yielded  to  said  defendant's  supposed  incumbency  of  said 
office.  That  at  the  time  when  the  complainant  so  delivered 
said  books  and  effects,  and  so  yielded  to  said  defendant, 
complainant  did  not  know  of  defendant's  disqualification  for 
said  office,  and  did  not  know  the  facts  hereinbefore  set  forth 
pertaining  to  defendant's  residence  or  citizenship,  nor  any 
of  said  facts,  but  complainant  supposed  said  defendant  to 
be  a  citizen  of  Wisconsin  at  the  time  of  his  said  appointment 
and  supposed  him  to  be  eligible  to  said  office. 

V.  That  defendant  unlawfully  usurped  said  office  on  or 
about  the  ....  day  of ,  19. .,  and  has  ever  since  con- 
tinued to  unlawfully  usurp  said  office,  and  now  unlawfully 
usurps  said  office  and  exercises  the  same,  and  has  since  the 

....  day  of ,  19. .,  withheld  and  still  withholds  the 

same,  and  the  fees  and  emoluments  thereof,  from  complain- 
ant. That  complainant  has  demanded  of  defendant  that 
he  surrender  up  said  office  and  the  books  and  efTects  of  said 


Chapter  LXXX.]  1269  [Form  1750. 

office  to  complainant,  all  of  which  defendant  has  refused 
and  still  refuses  to  do. 

VI.  That  complainant  has  informed  the  attorney-general 
of  Wisconsin  of  the  foregoing  facts  and  demanded  that  he 
bring  in  action  in  the  name  of  the  state  of  Wisconsin  to  oust 
said  C . . . .  D .  . .  .  from  said  office,  but  said  attorney-gen- 
eral refused  and  still  refuses  to  act. 

WHEREFORE  complainant  demands  judgment  against 
said  defendant  C .  . .  .  D . . . . ;  that  said  defendant  C . . . . 
D....  be  adjudged  guilty  of  usurping,  intruding  into  and 
unlawfully  holding  said  office,  and  that  he  be  excluded  from 
the  same  and  the  privileges  of  the  same;  that  said  A. . . . 
B.  . . .  be  entitled  to  have,  hold  and  exercise  said  office  and 
to  the  fees,  emoluments  and  privileges  thereof;  that  said 
A. . . .  B .  . . .  recover  the  costs  of  this  action  against  said 
G . . . .  D . . . . ;  and  for  all  further  and  other  relief  as  the 
court  may  deem  just. 

1750.  Complaint  by  taxpayer  for  usurpation  of  county 
office  by  person  elected  but  not  eligible  (from 
complaint  in  Fordyce  v.  State,  115  Wis.  608;  92 
N.  W.  430). 

[Title.] 

The  above  named  relator  brings  this  action  in  the  name  of 
the  state  of  Wisconsin  against  the  above  named  defendant, 
and  for  a  complaint  in  this  action  alleges: 

I.  That  the  relator  now  is  and  for  more  than  two  years 
prior  to  the  commencement  of  this  action,  including  all  the 
times  hereinafter  mentioned,  has  been  a  resident,  freeholder, 

taxpayer  and  duly  qualified  elector  and   voter  in    

county,  W^isconsin,  and  now  resides,  and  during  all  of  said 

times  resided  in  the  city  of in  said  county,  and  now 

is  and  during  all  of  said  times  has  been  a  citizen  of  the 
United  States  and  of  the  state  of  Wisconsin. 

II.  That  on  the  ....  day  of  November,  19. .,  at  a  general 

election  held  in  and  for  said  county  of pursuant  to 

law,  for  the  election,  among  other  officers,  of  a  county  super- 
intendent of  schools  of  said  county,  for  the  term  of  two  years 
from  the  ....  day  of ,  19. .,  the  said  defendant  re- 
ceived the  greatest  number  of  votes  cast  for  said  office,  and 
that  thereafter  the  canvassing  board  of  said  county  proceeded 


Form  1750.]  1270  [Chapter  LXXX. 

to  canvass  the  returns  of  said  election  from  the  various  towns, 
wards,  villages,  and  election  districts,  and  determined  that 
said  defendant  was  elected  to  the  said  office  of  county  super- 
intendent, and  thereupon  issued  a  certificate  of  election  to 
the  effect  that  the  defendant  received  the  greatest  number  of 
votes  for  said  office,  and  was  elected  to  said  office;  the  said 
certificate  of  election  was  delivered  to  said  defendant,  and 

thereafter  and  on  the  first  Monday  of ,  19.  .,  the  said 

defendant  attempted  to  qualify  as  such  county  superintend- 
ent, by  taking  and  subscribing  the  oath  of  office  in  the  form 
required  by  law,  and  filing  the  same  with  the  county  clerk, 
and  executed  her  official  bond  in  the  form  required  by  law, 
and  in  the  amount  and  with  the  sureties  required  by  the 
county  board  of  said  county,  and  filed  the  same  in  the 
manner  required  by  law. 

III.  That  said  defendant  is  not  and  never  has  been  eligi- 
ble to  the  office  of  county  superintendent  of  schools,  and 
was  not  eligible  to  said  office  at  the  time  of  her  election;  that 
she  did  not  at  said  time  nor  at  any  other  time  hold  a  certifi- 
cate entitling  her  to  teach  in  any  of  the  public  schools  in  said 
state;  that  she  did  not  at  said  tiriie,  nor  at  any  other  time, 
ever  hold  a  county  superintendent's  certificate  issued  by  the 
state  superintendent  after  examination  by  and  upon  the 
recommendation  of  the  board  of  examiners  for  state  certifi- 
cates, as  required  by  law,  and  did  not  at  that  time,  nor  at 
any  other  time  ever  hold  any  county  superintendent's 
certificate  of  any  kind  whatever;  that  she  had  never  held  the 
office  of  county  superintendent  of  schools  on  or  prior  to  the 
first  day  of  May,  19.. 

IV.  That  the  name  of  said  defendant  was  illegally  placed 
upon  the  official  ballot  of  said  county,  as  a  candidate  for  the 
office  of  county  superintendent  of  schools  of  said  county  at 
said  election;  that  the  defendant  failed  and  neglected  to  file 
in  the  office  of  the  county  clerk  of  said  county,  ten  days 
before  the  day  of  said  election,  or  at  any  other  time  whatever, 
any  proof  whatever  of  having  taught  in  any  of  the  public 
schools  of  this  state,  or  any  copy  of  a  certificate  entitling 
her  to  teach  in  any  of  such  schools,  or  any  certificate  known 
as  a  county  superintendent's  certificate,  or  any  proof  that 
she  held  the  office  of  county  superintendent  of  schools  in 

this  state  on  or  before  the  ....  day  of ,  19. .,  that  said 

defendant  failed  and  neglected  to  file  in  the  office  of  the 


Chapter  LXXX.]  1271  [Form  1751. 

county  clerk  of  said  county  any  proof  whatever  that  she 
held  any  certificate  entitling  her  to  teach  in  any  of  the 
schools  in  this  state,  or  any  copy  of  any  such  certificate,  or 
any  county  superintendent's  certificate,  or  any  copy  of  any 
such  certificate,  or  any  proof  whatever  showing  that  she  was 
entitled  to  hold  said  office,  or  was  eligible  thereto. 

V.  That  on  said  first  Monday  of ,  19. .,  the  de- 
fendant usurped  and  intruded  into  the  said  office  of  county 
superintendent  of  said  county  and  has  ever  since  unlawfully 
exercised  the  said  office,  and  still  holds  the  same  with  the 
fees  and  emoluments  thereof,  and  threatens  to,  and  will 
unless  restrained  by  the  court,  collect,  hold  and  receive  the 
fees  and  emoluments  of  said  office. 

WHEREFORE  the  state,  upon  the  complaint  of  the  said 
relator,  demands  judgment  against  said  defendant  that  the 
said  defendant  be  adjudged  guilty  of  usurpation,  intruding 
into  and  unlawfully  holding  said  office,  and  that  she  be 
excluded  from  the  same,  and  from  the  privileges  and  fran- 
chises thereof;  that  she  be  required  to  return  to  the  county 
all  fees  and  moneys  which  she  has,  or  may  receive  during 
the  pendency  of  this  action,  by  virtue  of  said  office  and  that 
the  relator  recover  his  costs  in  this  action,  together  with 
such  other  and  further  relief  as  may  be  proper. 

1751.  Complaint  by  property  owner  against  commercial 
railroad  company,  challenging  its  right  to  exer- 
cise franchise  to  build  an  elevated  road,  for- 
mally granted  to  it  without  authority  of  law  by 
a  city. 

[Title.] 

The  relator,  who  brings  this  action  in  the  name  of  the 
state,  complaining  of  the  defendant,  respectfully  alleges: 

I.  That  the  defendant  is  a  railroad  corporation  organized 
and  incorporated  under  and  by  virtue  of  section  ....  of  the 

statutes  of  19.  .,  and  that  a  copy  of  its  articles  of 

organization  is  hereunto  annexed  and  made  part  hereof, 
marked  Exhibit  A. 

II.  That  the  relator  is  a  resident  in  and  taxpayer  in  the 

city  of ,  county  of in  the  said  state  of 

and  is  the  owner  of  a  certain  parcel  of  land  upon 

street,  in  said  city,  described  as  follows  [insert  description.] 


Form  1751.]  1272  [Chapter  LXXX. 

III.  That  by  reason  of  the  enactment  of  the  ordinance 
hereinafter  named,  and  the  holding  by  the  defendant  of  the 
franchises  therein  attempted  to  be  conferred,  plaintiff's 
said  real  estate  was  greatly  diminished  in  value,  and  that  the 
construction  of  the  elevated  railway  hereinafter  described 
will  necessarily  result  in  further  great  damage  to  the  value 
of  said  real  estate  and  to  said  relator. 

IV.  Upon  information  and  belief,  that  on  or  about  the 
....  day  of ,  19.  .,  the  said  defendant  made  applica- 
tion to  the  mayor  and  common  council  of  the  city  of 

in  words  and  figures  as  follows  [insert  copy  of  application  for 
ordinance]  that  annexed  to  said  application  was  a  copy  of 
a  proposed  ordinance  granting  to  said  defendant  the  right 
and  authority  to  construct,  maintain  and  operate  an  ele- 
vated railroad  with  two  tracks,  and  such  curves,  spurs,  side- 
tracks, switches,  stations  and  platforms  as  said  railway 
company,  its  successors  or  assigns  might  deem  necessary  for 
operating  its  said  railroad  along  and  upon  the  streets  in  said 
proposed  ordinance  named,  and  that  thereafter,  upon  said 
application,    the   said   ordinance   was   brought   before   the 

common  council  of  the  city  of pursuant  to  a  notice  of 

application  therefor  duly  published  according  to  law,  and 
such  proceedings  were  had  thereon  by  the  said  common 

council  that  upon  the  ....  day  of ,  19 . . ,  said  common 

council  duly  passed  said  ordinance,  and  the  same  was  ap- 
proved by  the  mayor  of  said  city,  and  that  a  true  copy  thereof 
is  hereto  attached  and  made  part  hereof,  marked  Exhibit  B. 

V.  That  after  the  passage,  approval,  and  publication  of 
said  ordinance  as  aforesaid,  the  said  defendant  filed  with  the 

said  city  clerk  of  said  city  of his  written  acceptance 

of  the  said  ordinance  under  seal,  and  that  said  defendant 
now  holds  the  said  franchises  granted  or  attempted  to  be 
granted  by  said  ordinance,  and  exercises  the  said  franchises, 
by  proceeding  to  act  thereunder,  and  by  said  written  ac- 
ceptance. 

VI.  That  the  lands  of  the  plaintiff  hereinbefore  set  forth 

front  and  abut  upon street  in  the  said  city  of 

for  a  distance  of  ....  feet,  and  that  the  elevated  railroad 
proposed  to  be  built  under  said  ordinance  by  the  said  de- 
fendant runs  upon  and  along  the  said street,  and  in 

front  of  and  upon  the  said  premises  of  the  relator  for  the 
said  distance  of  ....  feet,  and  that  the  defendant  claims  the 


Chapter  LXXX.]  1273  [Form  1751. 

right  under  and  by  virtue  of  said  ordinance,  and  the  fran- 
chises thereby  attempted  to  be  granted,  to  build,  maintain 
and  operate  the  said  elevated  railroad  upon  said  street,  and 
in  front  of  and  upon  the  relator's  said  real  estate. 

VII.  Upon  information  and  belief,  that  said  defendant 
has  no  power  or  authority  under  its  charter  or  under  the 

laws  of  the  state  of to  construct,  maintain,  or  operate 

said  elevated  railroad  in  said  ordinance  described  or  any 

similar  elevated  railroad  upon  said street,  or  upon  any 

of  the  streets  of  the  said  city  of ,  and  that  said  de- 
fendant has  no  power  or  authority  to  accept,  hold,  or  exer- 
cise the  franchises  attempted  to  be  created  by  the  said 
ordinance,  and  that  the  said  common  council  of  the  said 

city  of has  no  right,  power,  or  authority  to  confer 

upon  the  defendant  the  rights,  privileges  and  franchises 
granted  in  said  ordinance. 

VIII.  That  heretofore,   on  or  about  the    ....    day  of 

,  19.  .,  the  relator  applied,  upon  verified  petition,  to 

the  attorney-general  of  the  state  of to  bring  action 

in  the  name  of  the  state  of against  the  said  defendant 

for  the  purpose  of  requiring  the  said  defendant  to  show  cause 
by  what  authority  it  attempts  to  hold  and  exercise  said 
franchises,  but  that  the  said  attorney-general  upon  the  date 
last  aforesaid  refused  to  act  in  said  matter,  and  declined  to 
bring  the  said  action. 

IX.  That  the  relator  thereafter  executed  and  filed  with 

said  attorney-general  a  bond  running  to  the  state  of , 

conditioned  for  the  payment  of  all  costs  and  disbursements 
which  might  be  adjudged  against  the  relator  in  this  action, 
which  bond  was  sufficient  for  said  purpose  in  form  and  sure- 
lies,  and  was  approved  by  said  attorney-general. 

WHEREFORE  plaintiff  demands  judgment  that  said 
defendant  be  required  to  show  cause  by  what  authority  it 
holds  and  exercises  the  franchises  attempted  to  be  granted 
by  said  ordinance,  and  that  in  default  of  such  showing  said 
defendant  be  adjudged  guilty  of  unlawfully  holding  said 
franchises  or  privileges,  and  be  excluded  from  the  same,  and 
be  adjudged  to  pay  a  fine,  together  with  the  costs  and  dis- 
bursements of  this  action;  and  that  the  plaintiff  have  such 
other  and  further  order,  judgment,  or  relief  as  may  be  equit- 
able. 


Form  1752.]  1274  [Chapter  LXXX. 

1752.  Complaint  by  taxpayer  of  a  village  illegally  in- 
corporated against  the  village  and  its  officers, 
challenging  the  corporate  existence  of  the  sup- 
posed village,  and  praying  that  the  alleged  vil- 
lage officers  be  ousted  (adapted  from  complaint 
in  State  v.  Leischer,  117  Wis.  475;  94  N.  W. 
299). 

I.  That  the  defendant  [name  alleged  village]  is  a  pretended 

village  or  municipal  corporation,  in  the  county  of in 

said  state,  attempted  to  be  organized  under  the  laws  of  the 

state  of ,  but  never  in  fact  legally  organized  or  ex- 

isting2,  and  that  the  defendants  C. . . .  D.  . . .  [etc.,  naming 
acting  officers],  now  claim  to  and  do  in  fact  exercise  authority 
as  officers  of  said  pretended  village,  and  are  exercising 
authority  as  such  village  officers,  levying  taxes,  taking  charge 
of  highways,  and  otherwise  usurping  full  power  and  author- 
ity as  such  village  officers  within  the  territory  hereinafter 
described. 

II.  That  the  relator  is  a  resident  within  the  limits  of  said 
alleged  village,  and  owns  real  estate  and  is  a  taxpayer  within 
the  said  territory  over  which  the  said  last  named  defendants 
are  wrongfully  exercising  the  powers  of  village  officers  as 
aforesaid. 

III.  That  [here  set  forth  the  steps  taken  to  incorporate  the 
said  supposed  village,  and  allege  specifically  the  defects  in  the 
proceedings  which  render  the  attempted  incorporation  void,  if 
the  defect  be  that  there  were  illegal  votes  cast  at  the  election 
called  to  decide  the  question,  the  number  of  votes  cast  for  and 
against  the  proposition  should  be  specifically  stated,  and  the 
alleged  illegal  votes  named,  and  the  grounds  of  illegality  set  forth 
as  in  the  first  form  in  this  chapter]. 

IV.  That  at  a  pretended  election  held  in  said  pretended 

vifiage  on  the  ....  day  of ,  19. .,  the  said  defendants 

C. . . .  D. . . .  [etc.,  naming  defendants],  were  in  form  elected 
officers  of  said  village,  to-wit:  C . . . .  D . . . .,  president;  E. . . . 
F . . . . ,   clerk  [name  defendants  and  their  respective  offices] 
and  that  each  and  all  of  said  defendants  thereafter  in  form 
qualified  for  their  respective  offices,  and  thereafter  assumed 

'  The  de  facto  village  is  a  neces-      istence.      State    v.    Leischer,    117 
sary  party  to  the  action,  notwith-      Wis.  475,  94  N.  W.  299. 
standing  it  may  have  no  legal  ex- 


Chapter  LXXX.]  1275  [Form  1753. 

and  now  assume  to  discharge  the  duties  of  village  officers 
in  said  territory,  and  unlawfully  usurp  the  power  and  au- 
thority to  act  as  such  officers;  and  that  said  defendants  have 
and  claim  no  other  right  or  authority  to  act  as  such  officers, 
nor  has  such  pretended  village  any  right  or  authority  to 
exist  as  a  village  other  than  the  right  attempted  to  be  con- 
ferred and  acquired  by  the  proceedings  hereinbefore  set 
forth. 

V.     That  the  relator,  on  the day  of ,  19 . .,  and 

before  the  commencement  of  this  action,  made  due  applica- 
tion to  the  attorney-general  of  the  state  of to  com- 
mence an  action  of  quo  warranto  against  said  pretended 
village  and  said  pretended  officers,  but  that  said  attorney- 
general  refused  and  still  refuses  so  to  do. 

WHEREFORE  plaintiff  demands  judgment  that  said 
pretended  village  of be  adjudged  an  unlawful  usurpa- 
tion of  village  government;  that  said  defendants  C... 
D.  . . .,  etc.,  be  adjudged  to  have  unlawfully  usurped  their 
said  pretended  offices,  and  that  they  be  ousted  therefrom; 
and  that  plaintiff  have  such  other  judgment  or  relief  as  may 
be  just,  and  for  costs. 

1753.  Complaint  in  action  by  attorney  general  or  state's 
attorney  to  forfeit  franchises  of  a  street  railway 
company  and  vacate  its  charter,  because  of  fail- 
ure to  perform  its  duties  (adapted  from  State  v. 
Madison  S.  R.  Co.,  72  Wis.  612;  40  N.  W.  487).^ 

STATE  OF  

Court County. 


State  of  

.  on  relation  of 
. . . ,      Attorney 

A....      B. 

General    of 

said    State    [or 

State's  Attorney  for 

county], 

Plaintiff, 

1 

vs. 

C...  D.... 

Street  Railway 

Company, 

Defendant. 

Form  1753.]  1276  [Chapter  LXXX. 

The  complaint  of  the  state  of on  the  relation  of 

A. . . .  B. . . .,  respectfully  shows  and  alleges: 

I.  That  the  deftndant,  the  C . . . .  D . . . .  Street  Railway 
company,  is  a  corporation  duly  created  anfl  existing  under  the 
laws  of  said  state,  and  that  it  was  organized  for  the  purpose 
of  constructing  and  operating  a  street  railway  in  the  city  of 

in  said  state,  and  that  it  has  its  principal  office  and 

place  of  business  in  said  city  of 

II.  That  on  the   ....  day  of ,  19..,  the  relator 

duly  made  application  to  the   court  of   for 

leave  to  bring  this  action,  in  and  by  a  duly  verified  petition 
signed  by  himself  [or  by  E....    F....]  and  that  on  the 

....   day  of   ,   19..,     the  said  court  by  order  duly 

entered,  granted  leave  to  the  said  attorney-general  [or 
state's  attorney]  to  bring  this  action,  and  that  satisfactory 
security  has  been  given  by  bond,  with  sufficient  sureties,  duly 
executed  and  delivered,  to  indemnify  the  said  state  against 
all  costs  and  expenses  to  be  incurred  in  this  action,  and  that 
this  action  is  one  of  public  interest. 

III.  That  on  or  about  the  ....  day  of ,  19. .,  in 

and  by  an  ordinance  of  the  said  city  of entitled  "An 

Ordinance  Conferring  Certain  Rights  and  Privileges  upon 
the  C . . . .  D . . . .  Street  Railway  Company,"  authority  and 
permission  was  granted  to  the  said  C . . . .  D . . . .  street  rail- 
way company,  to  lay  and  maintain  a  single  or  double  track 
street  railway  on  certain  streets  of  said  city,  and  operate 
street  cars  thereon  by  electric  power,  with  all  necessary 
switches,  curves,  turn-outs  and  other  appliances  and  con- 
veniences, on  the  express  condition  that  the  said  C . . . . 
D . . . .  street  railway  company  should  construct  and  have 

in  operation  one  line  of  the  said  railway  extending  from 

to on  or  before  the  ....  day  of ,  19.  .,  and 

should  thereafter  at  all  times  during  the  continuance  of  the 
rights  granted  by  said  ordinance  maintain  and  operate  the 
same;  that  said  franchise  was  limited  by  said  ordinance  to  a 
period  of  twenty-five  years  from  the  date  of  the  passage 
thereof;  and  it  was  further  conditioned  that  if  said  railway 
company  failed  or  neglected  to  construct  and  complete,  and 
thereafter  operate  the  said  lines  of  railway  over  the  routes 

'  See  note  to  Form  133  as  to  the  necessity  of  obtaining  leave  to 
bring  this  action. 


Chapter  LXXX.]  1277  [Form  1753. 

and  within  the  time  in  said  ordinance  provided,  then  said 
company  should  forfeit  all  rights,  privileges  and  franchises 
in  said  ordinance  granted,  and  the  same  should  become  null 
and  void,  and  of  no  efTect,  and  that  said  railway  company,  as 
a  condition  of  accepting  the  rights  and  authority  thereby 
granted,  agreed  to  construct  the  said  railway  in  a  good  and 
substantial  manner,  and  in  accordance  with  the  approved 
plans  for  the  construction  of  such  railway,  and  further 
agreed  [here  insert  any  further  conditions  contained  in  the 
ordinance  with  regard  to  the  building  of  the  road,  its  mainte- 
nance, and  the  duties  of  the  street  railway  company  which  are 
claimed  to  have  been  violated]. 

IV.  That  it  was  further  enacted  in  and  by  said  ordinance 
that  the  same  should  be  null  and  void,  and  that  all  rights 
granted  thereby  should  cease  and  be  of  no  efTect  unless  ra'd 
company  should  file  a  written  acceptance  of  the  same  with 
the  clerk  of  said  city  within  sixty  days  after  the  passage  there- 
of; that  said  ordinance  was  passed  by  the  common  council 

of  the  said  city  of on  the day  of .,  19 . ., 

and  duly  signed  by  the  mayor  of  said  city  on  the day 

of ,  19 . . ,  and  that  the  said  C . . . .  D . . . .  street  rail- 
way company  thereafter  accepted  the  privileges  and  fran- 
chise granted  in  said  ordinance,  by  filing  with  the  clerk  of 

said  city  its  written  acceptance  thereof  on  the day  of 

,19.. 

V.  That  the  said  C . . . .  D street  railway  company, 

by  virtue  of  the  rights  and  privileges  granted  by  said  ordi- 
nance, thereafter  constructed  a  street  railway  track  begin- 
ning at  [name  and  describe  the  track  constructed]  and  that 
the  said  G . . . .  D . . . .  street  railway  company  thereafter 
commenced  to  operate  the  said  street  railway  track  by  the 
running  of  cars  thereon,  but  that  said  street  railway  company 
wholly  failed  and  neglected  to  comply  with  the  conditions 
and  provisions  of  said  ordinance,  in  the  following  respects, 
to-wit,  that  the  said  company  has  wholly  failed  and  neglected 
to  grade  the  streets  between  the  rails  of  its  said  track,  so 
as  to  restore  said  portions  of  the  streets  to  the  proper  con- 
dition of  repair  and  to  such  a  state  of  usefulness  as  to  make 
said  streets  as  serviceable  and  useful  as  is  needed  for  the 
ordinary  public  use  of  the  same;  that  the  said  defendant  has 
wholly  failed  and  neglected   [here  set  forth  particularly  all 


Form  1754.]  1278  [Chapter  LXXX. 

breaches  of  the  ordinance  which  are  relied  upon  as  grounds  for 
vacating  the  franchise]. 

WHEREFORE  judgment  is  demanded  against  said  de- 
fendant that  it  may  be  adjudged  to  have  forfeited,  lost  and 
surrendered  all  rights  and  privileges  granted  to  it  by  the 
said  ordinance,  and  all  its  corporate  rights,  privileges  and 
franchises,  and  that  by  the  judgment  of  this  court  it  be  ex- 
cluded from  the  exercise  of  said  rights,  franchises,  corporate 
rights,  and  privileges,  and  that  it  be  dissolved  and  its  affairs 
wound  up;  that  its  property  be  sold  and  converted  into 
money;  that  a  receiver  be  appointed  for  the  purpose  of  clos- 
ing up  the  affairs  of  said  corporation,  and  its  property  be 
applied  to  the  payment  of  its  debts  and  liabilities,  together 
with  the  costs  of  this  action,  and  that  such  further  or  other 
judgment  be  rendered  as  may  be  just  and  equitable. 

G . . , .  H . .  . . ,  Attorney  General. 
[Verification.]  [or.  State's  Attorney  of County.] 

1754.  Complaint  by  attorney  general  or  state's  attorney 
to  vacate  corporate  charter  for  violation  of 
law.* 

I.  [As  in  last  preceding  form,  setting  forth  fully  the  cor- 
porate powers.] 

II.  [Allege  obtaining  of  leave  to  sue,  as  in  last  preceding 
form.] 

III.  That  said  corporation,  for  the  space  of  ....  months 
past  has  exercised,  without  any  warrant,  charter  or  grant, 
the  franchise  of  banking,  and  has  issued  notes,  received  de- 
posits, made  discounts,  and  transacted  other  banking  busi- 
ness to  which  it  was  not  authorized,  and  has  exercised  fran- 
chises not  conferred  upon  it  by  law.  [Or  allege  violation  of 
its  charter  or  of  law,  according  to  the  fact.] 

WHEREFORE  the  plaintiff  demands  judgment,  that  the 
defendant  [corporation]  be  excluded  from  all  corporate  rights, 
privileges,  and  franchises,  and  that  the  charter  of  said  cor- 
poration be  annulled  and  vacated;  and  for  the  costs  of  this 
action. 

*  See  note  to  Form  133. 


Chapter  LXXX.]  1279  [Forms  1755-1757. 

1755.  The  same,  for  failure  to  exercise  its  powers. 

[/  and  II  as  in  last  preceding  form.] 

III.  That  said  corporation,  without  any  reasonable  cause 
therefor  has  failed  to  exercise  its  powers  and  has  omitted 
to  carry  on,   or  transact  any  of  its  lawful  and  ordinary 

business  since  about  the  ....  day  of ,  19.  .,    and  has 

permitted  its  ordinary  and  lawful  business  to  be  suspended 

for  a  period  of  more  than    years,  next  before  the 

comm(  ncement  of  this  action,  and  still  permits  the  same  to 
be  suspended,  whereby  it  has  forfeited  the  rights,  privileges 
and  franchises  granted  to  it  and  acquired  by  it  under  the 
laws  of  this  state. 

WHEREFORE,  the  plaintiffs  demand  judgment  that  said 
corporation  be  dissolved,  its  charter  vacated,  and  its  stock, 
property,  things  in  action  and  effects  be  distributed  among  its 
creditors  and  stockholders,  and  that  a  receiver  thereof  be 
appointed,  and  that  the  plaintiffs  may  have  such  other  and 
further  relief  as  may  be  just  and  equitable,  with  costs. 

1756.  Outline  of  complaint  for  violation  of  law  by  en- 

tering a  combination  in  restraint  of  trade  (Wis. 
Stats.  1913  sec.  1791j). 

[/  and  //  as  in  last  preceding  forms.] 

III.  [Allege  the  making  of  the  illegal  agreement,  conspiracy 
or  combination  in  restraint  of  trade  by  the  defendant  with  other 
corporations  or  persons  and  its  terms,  as  definitely  as  possible, 
and  allege  also  the  fact,  if  it  be  a  fact,  that  by  reason  of  said 
agreement  or  combination  competition  in  the  supply  or  price  of 
any  article  of  commerce  has  been  prevented  or  controlled.] 

WHEREFORE,  plaintiffs  demand  judgment  that  de- 
fendant, the Company  be  dissolved,  its  charter  for- 
feited and  cancelled,  and  its  corporate  existence  annulled; 
that  it  be  enjoir  d  from  acting  as  a  corporation,  and  a  re- 
ceiver of  its  property  be  appointed,  and  for  such  other  and 
further  relief  as  may  be  appropriate,  with  costs. 

1757.  Allegation  of  application  to  attorney-general  to 

commence  action,  and  his  refusal. 

[To  be  inserted  where  action  is  brought  on  relation  of  private 
person,  and  the  statute  requires  that  application  be  first  made  to 
the  attorney-general  or  state's  attorney.] 


Form  1757.]  1280  [Chapter  LXXX. 

That  on  or  about  the  ....  day  of ,  19 .  .,  and  before 

the  commencement  of  this  action,  the  relator  [or  plaintiff], 
made  application  in  writing  to  the  attorney-general  of  the 

said  state  of [or,  to  the  state's  attorney  for  the  county 

of ]  that  he  commence  an  action  in  the  nature  of  an 

action  of  quo  warranto   against  the  said    for  the 

purpose  of  punishing  the  said  u;  urpation  of  office  on  the  part 
of  the  said  C ....  D ....  [or  for  the  purpose  of  vacating  the 
corporate  charter  of  the  defendant,  or  otherwise  state  the 
purpose  of  the  action],  but  that  the  said  attorney-general 
refused  and  still  refuses  to  commence  said  action. 


CHAPTER  LXXXI. 

COMPLAINTS  IN  VARIOUS  ACTIONS  AUTHORIZED 
BY  STATUTE. 


1758.  Complaint  for  statutory  for- 

feiture, general  form. 

1759.  Complaint    or    affidavit    of 

deputy  game  warden  for 
violation  of  game  law  in 
action  for  forfeiture  before 
justice  of  the  peace.  (Wis- 
consin.) 

1760.  Allegation  of  a  foreign  stat- 

ute imposing  the  liability 
sued  on. 

1761.  Complaint   by   wife   against 

saloonkeeper  for  damages 
resulting  from  sale  of 
liquors  to  husband,  an 
habitual  drunkard.  (Wis- 
consin.) 

1762.  Complaint  in  the  name  of  the 

state  upon  saloonkeeper's 
bgnd,  when  damages  have 
been  recovered  in  previous 
action  against  saloon- 
keeper.    (Wisconsin.) 

1763.  Complaint   by   wife   against 

one  who  sold  liquor  to  hus- 
band, causing  his  intoxi- 


cation and  resulting  dam- 
age to  his  wife.     (Iowa.) 

1764.  Complaint  by  married  wom- 

an on  saloonkeeper's  bond. 
(South  Dakota.) 

1765.  Complaint    by    minors     on 

bonds  of  several  saloon- 
keepers.    (Nebraska.) 

1766.  Complaint  for  damages 

against  a  witness  for  dis- 
obeying a  subpoena. 

1767.  Complaint  to  recover  a  for- 

feiture for  violation  of  a 
city  ordinance. 

1768.  Complaint  against  a  railroad 

corporation  for  exacting  an 
illegal  rate  of  fare. 

1769.  Complaint  by  state  against 

member  of  board  of  review 
to  recover  forfeiture  for  in- 
tentional omission  of  prop- 
erty from  tax  roll. 

1770.  Outline     of     complaint     on 

saloonkeeper's  bond 
(Minnesota.) 


In  Wisconsin  a  penalty  or  forfeiture  for  an  act  not  a  mis- 
demeanor is  to  be  recovered  in  a  civil  action  brought  in  the 
name  of  the  state,  or  in  case  any  portion  of  the  forfeiture  is 
payable  to  a  person  such  person  may  join  as  plaintiff  with 
the  state.  Wis.  Stats.  1913,  sees.  3294,  3295-3297.  It  is 
sufficient  to  allege  in  the  complaint  that  the  defendant  is 
indebted  to  the  plaintiff  in  the  amount  of  the  forfeiture  ac- 
cording to  the  provisions  of  the  statute,  naming  section  and 
chapter.  Id.  sec.  3295.  A  forfeiture  for  violating  a  munici- 
pal ordinance  is  to  be  sued  for  by  the  municipality  in  its 
own  name.  Id.  sec.  3303.  In  Minnesota  the  action  is  civil 
81 


Introduction.]  1282  [Chapter  LXXXI. 

and  to  be  prosecuted  by  the  officers  or  persons  to  whom 
they  are  by  law  given,  or  who  are  especially  authorized  to 
recover  them.  Minn.  Gen.  Stats.  1913,  sec.  8250.  In  Iowa 
the  action  is  to  be  prosecuted  by  the  officer  or  person  to 
whom  the  forfeiture  by  law  belongs  in  whole  or  in  part,  or 
the  officer  to  whom  it  is  to  be  paid  when  collected.  Iowa 
Ann.  Code,  1897  sees.  4338,  4339. 

In  North  Dakota  a  penalty  or  forfeiture  for  an  act  not  a 
misdemeanor  is  to  be  sued  for  in  a  civil  action  brought  by 
the  attorney-general  or  state's  attorney  in  the  name  of  the 
state  if  the  entire  sum  is  payable  to  the  state;  by  the  proper 
public  corporation  if  it  is  payable  to  such  corporation,  and 
if  payable  in  part  to  the  state  and  in  part  to  an  individual, 
then  by  either  party  or  by  both  jointly.  N.  Dak.  Rev. 
Codes  1905  sees.  7394,  7395.  The  same  provision  as  to  the 
allegations  of  the  complaint  is  made  as  in  Wisconsin.  Id. 
sec.  5787. 

In  stating  the  facts  of  a  case  under  a  statute,  care  must  be 
taken  to  make  a  case  clearly  within  the  statute;  and  this  may 
generally  be  best  done  by  pursuing  the  words  of  the  statute, 
adding  such  particulars  of  time,  place,  and  value  as  may  be 
necessary  to  give  defmiteness  and  certainty  to  the  claim; 
although,  where  the  plaintiff  is  a  stranger  to  the  transactions, 
and  defendant  may  be  presumed  cognizant  of  them,  general- 
ity of  statement  is  permitted. 

It  is  not  necessary  to  aver  a  scienter  in  the  violation,  unless 
the  statute  gives  the  action  only  for  a  knowing  violation. 

A  distinct  proviso,  whether  in  the  same  section,  or  another, 
furnishing  mere  matter  of  excuse  for  the  defendant,  need  not 
be  negatived;  but,  generally,  an  exception  incorporated  in 
the  very  clause  should  be  negatived.  The  true  test,  under 
the  code,  is  this:  if  the  burden  of  proof  is  on  the  plaintiff  the 
matter  should  be  alleged.  If  it  is  matter  of  defense,  to  be 
established  by  the  defendant  in  order  to  make  the  exception 
or  proviso  avail  him,  the  plaintiff  need  not  notice  it. 

Numerous  violations  of  a  single  provision, — e.  g.,  a  single 
subdivision  of  the  ^section  of  the  statute, — may  be  alleged 
in  one  count.  But  there  should  be  a  separate  count  for 
violations  of  a  distinct  subdivision.^ 

^In  Oregon  and  Washington  all  given  by  law,   or  who  is  by  law 

fines  and  forfeitures  are  recovered  authorized  to  prosecute  for  them. 

by  action  at  law  in  the  name  of  the  Oregon  Laws  1910  sec.  353;  Wash, 

officer  or  person  to  whom  they  are  Rem.  and  Bal.  Code  1910  sec.  963. 


Chapter  LXXXL]  1283  [Forms  1758,  1759. 

1758.  Complaint  for  statutory  forfeiture  (general  form) . 

I.  That  on  the  ....  day  of ,  19 . . ,  at the 

defendant  [here  state  acts  constituting  a  violation  of  the  statute, 
either  following  the  words  of  the  statute,  or  setting  forth  the 
facts  more  specifically]. 

II.  That  thereby  the  defendant  became  indebted  in  the 
amount  of  [the  penalty  or  forfeiture]  to  the  [one  for  whose  use 
the  same  is  given]  whereby  an  action  accrues  according  to  the 
provisions  of  [stating  the  title  or  the  subject-matter  of  the  stat- 
ute, and  naming  the  section,  title,  and  chapter  which  imposes 
the  penalty]. 

[Demand  for  Judgment.] 

1759.  Complaint  or  afndavit  by  deputy  game  warden 

for  violation  of  game  law  in  action  for  forfeiture 
before  justice  of  the  peace  (Wisconsin)  .^ 

[Title.] 
[Venue.] 
L....  M....,  being  duly  sworn  and  examined  by  and 

before  0....  P a  justice  of  the  peace  in  and  for  said 

county,  says  that  he  is  a  deputy  of  the  state  fish  and  game 
warden  of  said  state  [and  makes  this  complaint  on  behalf  of 
said  state]  and  for  complaint  herein  says  that  A . . . ,  B . . . . 

heretofore,  to-wit,  on  the  ....  day  of 19 . . ,  at 

county,  in  said  state  of  Wisconsin,  incurred  a  forfeiture  of 

dollars,  according  to  the  provisions  of  section  .... 

of  chapter  ....  of  the  laws  of  said  state  for  the  year  19 . .,  by 
then  ^and  there  offering  for  transportation  to  a  common 
carrier  and  transporting  unlawfully  two  or  more  packages  of 
fish  caught  in  the  inland  waters  of  the  state  of  Wisconsin, 
to-wit,  pike  taken  from  Lake  Winnebago  in  said  state,  to  a 
point  outside  of  the  state  of  Wisconsin,  the  same  being  in 
more  than  twenty  pound  packages;  and  the  said  A.... 

*  This  form  is  sustained  in  State  necessary    because  the  statute  di- 

V.  Nergaard,  124  Wis.  414,  102  N.  rertly  authorized  the  complaint  to 

W.  899,  under  sec.  3602  Wis.  Stats.  be  made  by  a  deputy  warden.     It 

1913.    This  was  civil  action  before  was  intimated  however,  that  in  case 

a  justice  of  the  peace  to  recover  a  such  a  complaint  were  made  by  a 

forfeiture  to  the  state  imposed  by  private  citizen  it  should  appear  on 

the  fish  and  game  law  of  the  state,  the  face  that  it  was  made  on  be- 

The  words  in  brackets  were  not  in  half  of  the  state, 
the  precedent,  and  held  to  be  un- 


Forms  17G0,  1761.]  1284  [Chapter  LXXXI. 

B . is  now  indebted  to  the  State  of  Wisconsin  in  the  sum 

of dollars  forfeiture  for  the  violation  of  the  section 

last  designated. 

WHEREFORE  the  complainant  demands  that  a  civil 
warrant  be  issued  for  the  body  of  the  said  A.  . . .  B . . . .,  and 
that  he  be  arrested  and  dealt  with  according  to  law  and  held 
to  answer  to  the  said  state  of  Wisconsin  therefor. 

Dated ,19.. 

Lu  •  •  •  •  iVX  •  •  •  ■ 

Subscribed    and    sworn   to   before 

me  this    ....    day  of    ,   19.. 

0....  P...., 
Justice  of  the  Peace. 

1760.  Allegation  of  a  foreign  statute  imposing  the  lia- 

bility sued  on. 

I.  That  by  section  ....  of  Chapter  ....  of  the  laws  of  the 
state  of passed  ,  19. .,  which  chapter  is  en- 
titled "An  Act,  etc.,"  it  is  provided  as  follows  [insert  such 
provisions  of  the  law  as  impose  the  liability  sued  on]. 

II.  That  the  said  law  has  been  at  all  times  since  its  pas- 
age,  and  now  is,  in  full  force  and  effect,  and  [if  it  has  been 
construed  and  the  fact  of  such  construction  is  essential],  that  the 
highest  court  of  appellate  jurisdiction  in  said  state,  to-wit, 

the court,  in  the  action  of  0 .  .  . .  P . . . .  v.  X . . . . 

Y. . . .,  brought  before  said  court  and  reported  in  the  .... 
volume  of  the  reports  of  said  state  at  page  ....  decided  and 
still  holds  [state  the  construction]. 

III.  [Set  forth  the  cause  of  action  as  suggested  by  forms  in 
this  chapter.] 

1761.  Complaint  by  wife  against  saloonkeeper  for  dam- 

ages resulting  from  sale  of  liquors  to  husband, 
an  habitual  drunkard  (Wis.  Stats.  1913  sees. 
1554  and  1560). 

I.     That  the  plaintiff  is,  and  since  the  ....  day  of 

19.  .,  has  been  the  wife  of  one  E.  .  . .  F. . . .,  and  that  the 
said  E. . . .  F. .  . .  became  and  was,  prior  to  the  ....  day  of 

,  19.  .,  an  habitual  drunkard,  so  that  by  the  excessive 

drinking  of  intoxicating  liquors  the  said  E . . .  .  F . . . .  did 
misspend,  waste,  and  lessen  his  estate  so  as  to  expose  his 


Chapter  LXXXL]  1285  [Form  1761. 

family  to  want  and  injure  his  health  and  endanger  the 
personal  safety  and  comfort  of  this  plaintiff. 

II.  That  from  the  ....  day  of ,  19. .,  up  to  the 

time  of  the  commencement  of  this  action  the  defendant  has 

been  a  saloon  keeper  within  the  town  [or  city]  of duly 

licensed  under  the  laws  of  this  state  to  keep  a  saloon  within 
said  town  [or  city]  for  the  sale  of  strong,  spiritouus,  malt, 
ardent,  or  intoxicating  liquors. 

III.  That  on  the  ....  day  of ,  19.  .,  the  super- 
visors of  the  town  of in^  said  county  of [or, 

the  aldermen  of  the  city  of ]  being  the  town  [or  city] 

wherein  the  said  E . . . .  F . . . .  then  resided  [or,  this  plaintiff] 
did,  by  a  notice  in  writing  signed  by  them  [or  by  her]  and 
served  upon  the  defendant  on  that  day,  forbid  the  defendant 
and  all  other  persons  in  said  town  [or  city]  licensed  in  ac- 
cordance with  the  laws  of  this  state  to  sell  or  give  away  to 
said  E . . . .  F . . .  .  any  ardent,  spiritous,  or  intoxicating 
liquors  or  drinks  for  the  space  of  one  year  from  said  last 
named  date. 

IV.  That  after  the  giving  of  such  notice  to  the  defend- 
ant, and  notwithstanding  the  same,  and  on  or  about  the 

....  day  of ,  19.  .,  and  at  various  limes  thereafter 

and  prior  to  the  expiration  of  one  year  from  the  giving  of 
such  notice,  the  defendant  did  knowingly  sell  and  give  away 
to  the  said  E....  F.,..  intoxicating  liquors  and  drinks, 
thereby  causing  the  intoxication  of  the  said  E. . . .  F. . , ., 
which  intoxication  so  caused  became  and  was  continuous 
[or  very  frequent]  during  the  said  last  named  period,  whereby 
the  said  E .  .  .  .  F .  .  .  .  wasted  and  m.isspent  his  property 
and  became  sick  and  incapacitated  from  labor,  and  unable 
to  support  his  family,  and  the  plaintiff  was  reduced  to  pov- 
erty. 

V.  That  the  plaintiff  was  and  is  entirely  dependent  upon 
the  said  E. . . .  F.  .  .  .  for  her  support;  that  the  said  E.  .  .  . 
F. . . .  was  capable  of  earning  and  did  earn  large  sums  of 

money  when  not  intoxicated,  lo-wit,  about  the  sum  of 

dollars  per  week,  which  he  applied  to  the  support  of  this 
plaintiff;  that  by  reason  of  his  intoxication,  so  caused  by  the 
defendant,  his  health  has  been  ruined,  his  property  wasted, 
and  he  has  neither  earned  nor  contributed  anything  to 
plaintiff's  support,  and  the  personal  safety  and  comfort  of 
this  plaintiff  has  been  destroyed  and  she  has  been  reduced 


Form  1762.]  1286  [Chapter  LXXXI. 

to  a  state  of  permanent  sickness  and  ill-health,  in  all  to  her 
damage  in  the  sum  of dollars. 

[Or:  V.     That  theretofore  the  said  E F. . . .  has  been 

and  was  industrious  and  healthy,  and  was  earning 

dollars  per  month  in  his  business  as  a  carpenter  and  had  pro- 
vided for  plaintiff  and  their  said  family  a  comfortable 
support;  that  upon  the  earnings  of  her  said  husband  plain- 
tiiT  was  dependent  for  her  means  of  support.] 

VI.  That  in  consequence  of  said  continuous  intoxication 
so  caused  by  said  defendant,  said  E . . . .  F. . . .  neglected  this 
said  business  and  failed  to  properly  care  for  and  provide  a 
subsistence  for  plaintiff  and  their  said  family,  and  became 
frequently  disabled  and  sick,  and  plaintiff  was  compelled  to 
nurse  and  take  care  of  him,  and  he  became  and  was  unable 
to  provide  a  proper  support  for  his  said  family,  whereby  the 
plaintiff  has  suffered  damage  in  the  sum  of dollars. 

WHEREFORE  plaintiff  demands  judgment  against  the 

defendant  for  the  sum  of dollars,  with  the  costs  of 

this  action. 

1762.  Complaint  in  the  name  of  the  state  upon  saloon- 
keeper's bond,  when  damages  have  been  recov- 
ered in  previous  action  against  saloonkeeper 
(Wis.  Stats.  1913  sec.  1549).^ 

I.     That  the  defendant  G ....  D ....  on  or  about  the  .... 

day  of   19..,  duly  made  application  to  the  town 

board  [or  city  council]  of  the  town  [or  city]  of in  the 

county  of for  a  license  to  keep  a  saloon  in  said  town 

[or  city]  for  the  sale  of  strong,  spirituous,  malt,  ardent,  or 
intoxicating  liquors  under  the  provisions  of  the  statutes  of 
the  state  of  Wisconsin  within  said  town  [or  city]  and  that 
upon  the  same  day  the  said  defendant  C . . . .  D . . . .  as 
principal,  and  the  defendants  W . , . .  X . . . ,  and  Y . . . . 
Z . . . .  as  sureties,  executed  and  filed  with  the  clerk  of  said 
town  [or  city]  their  certain  bond,  ^hich  was  approved  by  said 
town  board  [or  city  council],  conditioned  as  required  by  sec- 

'  In    Wisconsin    the    action    for  tion    may    be    brought    upon    the 

damages  is  to  be  brought  against  bond  in  the  name  of  the  state  to 

the  saloonkeeper  alone,   and  after  recover    the    full    penalty    of    the 

judgment  is  obtained  in  that  ac-  bond.     Wis.  Stats.  1913  sec.  1560 

tion,  if  the  same  be  not  paid,  ac-  and  1549. 


Chapter  LXXXL]  '      1287  [Form  1763. 

tion  1549  of  the  Statutes  of  said  state,  a  copy  of  which  bond 
is  attached  hereto,  made  part  of  this  complaint,  and  marked 

Exhibit  A.       That  thereafter,  and  on  or  about  the day 

of ,  19 . . ,  the  said  C . . . .  D . . . .  paid  the  license  fee 

required  by  law,  and  the  said  town  board  granted  and  de- 
livered to  the  said  defendant  G .  . . .  D .  . . .  its  license  in  due 
form,  licensing  the  said  C . . . .  D . . . .  to  keep  a  saloon  for 

the  sale  of  such  liquors,  at   in  said  town  [or  cityl 

until  the  ....  day  of ,  19. .,  unless  sooner  revoked. 

II.  That  after  the  issuance  of  said  license,  as  aforesaid, 
the  said  G . . . .  D . . . .  kept  and  maintained  said  saloon  and 
sold  spirtuous,  malt,  and  intoxicating  liquors  therein  during 
the  term  of  said  license,  and  that  on  or  about  the  ....  day 

of ,  19 . . ,  one  A . . . .  B . . . .  brought  action  against  the 

said  C D . . . .  in  the court  of county,  for 

damages  resulting  to  her  from  the  unlawful  sale  of  intoxicat- 
ing liquors  by  him  during  the  term  of  said  license,  to  one  E . . . 
F. . . .  in  violation  of  the  provisions  of  section  1554  of  said 

Wisconsin  Statutes,  the  said  E .  .  .  .   F being  a  person 

to  whom  the  sale  of  such  liquors  had  been  duly  forbidden 
under  the  provisions  of  said  last  named  section. 

III.  That  such  proceedings  were  thereafter  had  in  said 

action  that  judgment  was,  on  the  ....  day  of ,  19.  ., 

duly  rendered  by  said  court  in  said  action  in  favor  of  said 

A B . . .  .  and  against  said  G D for  the  sum  of 

dollars   damages   and   costs,   which  judgment   has 

never  been  paid  and  is  in  full  force,  unappealed  from  and 
unreversed. 

WHEREFORE  the  plaintiff  demands  judgment  against 

said  defendants  for  the  sum  of dollars,  the  penalty  of 

said  bond,  and  for  the  costs  of  this  action. 


1763.  Complaint  by  wife  against  one  who  sold  liquor  to 
husband  causing  his  intoxication  and  resulting 
damage  to  the  wife  (Iowa  Ann.  Code  1897  sec. 
2418). 

I.     That  the  plaintiff  is  now,  and  ever  since  the  ....  day 

of ,  19 . . ,  has  been  the  wife  of  one  E . . . .  F . . . . ,  and 

was  and  is  dependent  upon  him,  the  said  E....  F.,..  for 
her  support. 


Forms  1764,  1765.]  1288  [Chapter  LXXXI. 

II.  That  on  or  about  the  ....  day  of ,  19. ,,  and 

at  various  times  between  that  date  and  the   ....   day  of 

,  19.  .,  the  defendant  did  wilfully  sell  and  give  to  the 

said  E . . . .  F . . . .  intoxicating  liquors,  of  which  the  said 
E....  F....  drank  and  became  intoxicated,  and  thereby 
became    an   habitual    drunkard. 

III.  That  while  so  intoxicated,  as  aforesaid,  the  said 
E . . . .  F .  . .  .  spent  his  time  in  idleness  and  failed  to  support 

this  plaintiff;  that  on  the  ....  day  of ,  19. .,  while  so 

intoxicated  by  intoxicating  liquors  so  sold  and  furnished 
to  him  by  the  defendant  the  said  E. . . .  F. . . .  by  reason 
of  such  intoxication  assaulted  and  beat  the  plaintiff  and 
dislocated  her  arm,  and  caused  her  great  pain  and  suffering 

in  body  and  mind,  to  her  damage  in  the  sum  of  

dollars. 

WHEREFORE,  etc. 

1764.  Complaint  by  married  woman  on  saloonkeeper's 

bond  (S.  Dak.  C.  C.  P.  1908  sees.  2839-2849).* 

I.  [Allege  the  procurement  of  a  license  and  the  giving  of  the 
bond  in  suit  with  particularity,  so  that  it  clearly  appears  thcd 
all  the  provisions  of  the  law  of  South  Dakota  were  complied 
with;  see,  by  way  of  example,  the  first  allegation  inform  1762.] 

II.  [Allege  the  relationship  of  the  plaintiff  to  the  person  to 
whom  liquor  was  unlawfully  sold,  as  in  Form  1761.] 

III.  [//  the  liquors  were  sold  to  a  forbidden  person,  allege 
the  giving  of  the  notice  substantially  as  in  Form  1761,  with 
such  changes  as  are  necessary  to  conform  to  S.  Dak.  C.  C.  P. 
1908,  sec.  2839.] 

IV.  [Allege  damages,  and  demand  judgment,  as  in  Form 
1761.] 

1765.  Complaint  by  minors  on  bonds  of  several  saloon- 

keepers (Neb.  R.  S.  1913  sees.  3849-3859)' 

I.  [Allege  infancy  of  plaintiff  and  appointment  of  a  guard- 
ian ad  litem  or  next  friend,  as  in  Form  863.] 

*  It  is  held  in  South  Dakota  that  13  S.  Dak.  497;  83  N.  W.  573.    See 

this  action  may  be  maintained  by  that  case  for  allegations  of  a  com- 

a  divorced  wife,   for  damages  ac-  plaint  by  divorced  wife  which  was 

cruing  to  herself  and  children  be-  there  sustained, 

fore  the  divorce.     Nordin  v.  Kjos,  *  Adapted  from  complaint  in  the 


Chapter  LXXXL]  1289  [Form  1766. 

II.  [Allege  giving  of  bonds  by  the  various  defendants,  and 
issuance  of  licenses  according  to  the  laws  of  Nebraska,  in  detail; 
see,  for  example,  the  first  allegation  in  Form  1762.] 

III.  That  each  of  the  said  defendants  on  or  about  the 

....  day  of ,  19.  .,  and  at  numerous  times  between 

that  time  and  the  date  of  the  commencement  of  this  action, 
and  during  the  continuance  of  their  said  Ucenses,  did  sell  and 
give  to  one  E. . . .  F. . . .  the  father  of  these  plaintiffs,  malt, 
spirituous,  and  vinous  liquors  in  large  quantities,  and  that 
the  said  E .  .  . .  F . . . .  drank  the  said  liquors  so  sold  and  given 
to  him,  and  thereby  and  by  the  excessive  use  of  said  liquors 
became  an  habitual  drunkard. 

IV.  That  the  said  plaintiffs  had  at  the  times  aforesaid 
and  still  have  no  means  of  support  except  the  support  fur- 
nished them  by  their  said  father;  that  prior  to  the  year  19. . 
the  said  E . .  .  .  F . . .  .  was  temperate  and  industrious,  and 
supported  these  plaintiffs  by  means  of  his  earnings  as  a 
carpenter,  but  that  by  reason  of  the  furnishing  of  said 
hquors,  as  aforesaid,  the  said  E....  F....  neglected  his 
business,  spent  his  time  in  idleness,  and  ceased  to  earn  any 
wages,  and  became  an  habitual  drunkard,  and  failed  entirely 
to  support  these  plaintiffs,  whereby  the  plaintiffs  suffered 
damage  in  the  sum  of dollars. 

WHEREFORE  [demand  judgment]. 

1766.    Complaint  for  damages  against  a  witness  for  dis- 
obeying a  subpoena.® 

I.     That  on  the day  of ,  19. .,  at the 

plaintiff  caused  the  defendant  to  be  duly  served  with  a  sub- 
poena commanding  him  to  attend  as  a  witness  in  the 

case  of  Bloedel  v.  Zimmerman,  et  Dak.  C.  C.  P.  1908  sec.  495;  Okla. 

al.,  41  Nebr.  699;  60  N.  W.  6,  where  Comp.  Laws  1909  sec.  5851;  Wash, 

the  right  of  minor  children  to  main-  Rem.  and  Bal.  Code  1910  sec.  1220; 

tain  the  action  for  loss  of  support  ^^yo.  Comp.  Slats.  1910  sec.  4551. 

was  maintained.  In  North  Dakota  a  witness  sub- 

*  Civil  damages  may  be  recovered  poenaed  by  defendant  in  a  criminal 

of  a  material  witness  who,   when  action  is  liable  in  a  civil  action  in 

duly  supoenaed  and  his  fees  paid  the  sum  of  fifty  dollars,  unless  he 

or  tendered,  wilfully  fails  to  attend.  shows  good  cause  for  his  non-at- 

Wis.  Stats.  1913  sec.  406.3;  Ariz.  R.  tendance.      N.    Dak.    Rev.    Codes 

S.  1913  sec.  1685;  Kans.  Gen.  Stats.  1905  sec.  10180.    In  such  action  the 

1909  sec.  5924;  Minn.  Gen.  Stats.  foregoing  form  may  be  susbstanti- 

1913  sec.  8372;  Mo.  R.  S.  1909  sec.  ally  used,  substituting  for  the  alle- 

6371;  Neb.  R.  S.  1913  sec.  8415;  S.  gations  of  damage  the  statement 


Form  1766.]  1290  [Chapter  LXXXI. 

court,  in  and  for  the  county  of [or,  to  attend  as  a 

witness  before  M . . . .  N . . . . ,  an  officer  of  the court, 

duly  empowered  to  receive  evidence,  or,  to  attend  as  a 

witness  before  M....  N a  commissioner  appointed  by 

the court,  to  take  testimony,  or,  to  attend  as  a  witness 

before  M....  N....,a  referee  duly  appointed  by  the 

court,    to    [briefly   designating   object   of  reference],    on   the 

....  day  of ,  19. .,  there  to  give  testimony  in  behalf 

of  the  plaintiff  in  proceedings  there  pending,  wherein  this 
plaintiff  was  plaintiff,  and  one  0 . . . .  P . . . .  was  defendant 
[or  otherwise  briefly  designate  the  proceedings]  and  that  the 
said  defendant  VN'as  a  material  witness  upon  the  issues  raised 
in  said  action  [or  proceedings]. 

II.  That  at  the  same  time  the  plaintiff  caused  ....  cents, 
the  lawful  fees  of  the  said  witness  for  one  day's  attendance 
and  his  mileage,  to-wit,  the  sum  of  ....  cents  to  be  paid 
[or  tendered]  to  him. 

III.  That  the  defendant,  not  regarding  his  duty,  and 
without  reasonable  or  sufficient  excuse,  failed  and  wilfully 
refused  to  attend  as  commanded. 

IV.  That  thereby  the  plaintiff,  when  said  action  was 
called  for  trial,  was  compelled,  for  want  of  the  testimony  of 
said  defendant,  without  whose  testimony  he  could  not 
safely  proceed  to  the  trial  of  said  action,  to  move  the  said 
court  there  to  postpone  [or  continue]  the  said  action;  and  the 
said  court  did  postpone  [or  continue]  the  same,  at  the  cost 
of  the  said  plaintiff;  and  the  plaintiff  was  compelled  to  pay 
on  said  postponement  [or,  continuance],  as  costs  thereof 


that  by  reason  of  such  disobedience  sec.  1992  ($100);  Idaho  Rev.  Codes 
of  the  subpoena  the  defendant  be-  1908  sec.  6042  ($100);  Iowa  Ann. 
came  indebted  to  the  plaintiff,  ac-  Code  1897  sec.  4664  ($50);  Mont, 
cording  to  the  provisions  of  sec.  Rev.  Codes  1907  sec.  7981  ($100); 
10180  of  the  Revised  Codes  of  Oregon  Laws  1910  sec.  821  ($150); 
North  Dakota,  in  the  sum  of  fifty  Utah  Comp.  Laws  1907  sec.  3424 
dollars.  The  statutes  of  several  of  ($100).  In  Arkansas  (Ark.  Dig.  of 
the  states  covered  by  this  work  Stats.  1904  sec.  3122)  the  court  may 
provide,  in  addition  to  the  recovery  summarily  order  the  defaulting  wit- 
of  damages  sustained  by  a  party  be-  ness  to  pay  to  the  party  on  whose 
cause  of  the  failure  of  a  witness  to  behalf  he  was  summoned  the  costs 
attend,  that  the  party  aggrieved  occasioned  to  the  party  by  the  dis- 
may recover  a  stipulated  forfeiture  obedience  of  the  supboena,  not  ex- 
in  the  same  civil  action.  These  ceeding  $20,  besides  being  liable  for 
states  and  the  statutory  forfeitures  any  damages  occasioned  by  the 
are  as  follows:    Cal.  G.  C.  P.  1906  failure  to  attend. 


Chapter  LXXXL]  1291  [Form  1767. 

dollars,  which  sum  he  was  so  compelled  to  pay  by 

reason  of  the  said  refusal  of  the  said  defendant;  to  the 
plaintiff's  damage dollars. 

[Or:  IV.  That  the  plaintiff,  when  said  action  was  called 
for  trial,  was  nonsuited  for  want  of  the  testimony  of  the 
defendant,  and  his  action  was  dismissed,  with  costs,  or 
otherwise  state  the  substance  of  the  judgment  of  nonsuit,  and 
the  plaintiff  was  compelled  to  pay  the  same,  and  the  sum  of 

dollars,  his  costs,  counsel-fees,  and  disbursements  in 

the  said  action;  and  that  the  defendant  in  said  action  having 
become  insolvent  (or,  the  demand  upon  which  said  action 
was  brought  having  meanwhile  become  barred  by  the 
statute  of  limitations),  the  plaintiff  lost  his  demand,  to 
recover  which  said  action  was  brought,  all  which  was  caused 
by  said  refusal  of  the  defendant;  to  the  plaintiff's  damage 
dollars.] 

WHEREFORE  [demand  judgment], 

1767.    Complaint  to  recover  a  forfeiture  for  violation  of 
a  city  ordinance. 

I.  That  the  plaintiff  is  and  was  at  the  times  hereinafter 
mentioned  a  municipal  corporation  organized  and  existing 
under  the  laws  of  the  state  of 

II.  That  heretofore,  and  on  or  about  the  ....  day  of 

,    19..,   the   common   council   of   the   plaintiff   city 

regularly  passed  an  ordinance  entitled  "[set  forth  title]," 
which  said  ordinance,  among  other  provisions,  provides  as 
follows  [set  forth  those  sections  of  the  ordinance  as  cover  offense 
charged]  [or,  a  copy  of  which  ordinance  is  attached  to  this 
complaint,   made   part   thereof,    and   marked   Exhibit   A]; 

that  thereafter  and  on  or  about  the  ....  day  of ,  19 . . , 

said  ordinance  was  duly  approved  by  the  mayor  of  said  city, 

and  was  on  the day  of ,  19. .,  duly  published  in 

the  official  paper  of  said  city. 

III.  That  thereafter,  and  on  or  about  the day  of 

,  19 .  .,  the  defendant  did,  contrary  to  and  in  violation 

of  the  ordinance  aforesaid  [set  forth  the  defendant's  violation 
of  the  ordinance]. 

IV.  That  by  reason  of  the  premises,  defendant  has  be- 
come indebted  to  the  plaintiff  in  the  sum  of dollars. 

WHEREFORE,  etc. 


Form  1768.]  1292  [Chapter  LXXXI. 

1768.    Complaint  against  a  railroad  corporation  for  ex- 
acting an  illegal  rate  of  fare.^ 

I.  That  the  defendant  is  now  and  was  at  the  times  herein- 
after named,  a  domestic  railroad  corporation  organized  and 
existing  under  the  laws  of  this  state,  and  maintaining  and 

operating  a  line  of  railroad  between  the  city  of and 

the  city  of in  said  state  and  elsewhere. 

II.  That  on  and  prior  to  the  ....  day  of ,  19. ., 

the  gross  receipts  of  the  defendant  corporation  resulting  from 
the  operation  of  its  said  railroad  exceeded  the  sum  of  three 
thousand  five  hundred  dollars  per  mile  per  annum,  and  the 
said  defendant  was  not  entitled  to  demand,  collect  or  re- 
ceive a  greater  compensation  for  the  transportation  of 
persons  over  its  said  railroad  line  than  three  cents  per  mile. 

III.  That  the  distance  between  said  cities  of and 

upon  defendant's  said  railroad  line  is miles  and 

no  more,  and  defendant  is  entitled  to  demand  and  receive 
from  each  passenger,  for  transportation  between  said  cities 
the  sum  of dollars  and  no  more. 

IV.  That  on  or  about  the  date  above  mentioned  the 

plaintiff  applied  at  defendant's  ticket  ofTice  at  said 

to  purchase  a  ticket  entitling  him  to  passage  between  said 

and ,  and  was  ready  and  willing,  and  offered 

to  pay  for  the  same  the  sum  of dollars,  but  defendant's 

agent  refused  to  sell  said  ticket  for  said  sum,  but  wilfully 

demanded  and  received  of  plaintiff  the  sum  of dollars 

for  said  ticket,  and  plaintiff  was  compelled  to  pay  said  sum, 
whereby  defendant  demanded  and  received  from  plaintiff 
....  cents  in  excess  of  the  lawful  rate  of  fares  as  aforesaid. 

V.  That  by  reason  of  the  premises  the  plaintiff  has  been 
actually  damaged  in  the  sum  of dollars. 

'  This  form  was  inserted  in  the  of  the  violation  of  any  section  of  the 
first  edition  of  the  work  to  meet  sec.  railway  commission  act,  (chapter 
17G8  Stats.  Wis.  1898  which  pro-  362  Laws  1905.)  applies  to  the  case 
vided  for  the  recovery  of  treble  of  an  overcharge  in  the  passenger 
damages  in  case  of  discontinuation  rate  now  fixed  by  sec.  1798a  Stats, 
or  unreasonable  overcharge  by  a  Wis.  1913,  and  the  form  is  preserved 
railroad  company  in  the  carriage  of  here  as  suggestive  of  the  general 
passengers  or  freight.  This  section  form  of  a  complaint  to  enforce  a 
was  repealed  in  1913.  It  is  quite  statutory  liability,  and  not  as  in- 
doubtful  whether  section  1797-25  dicating  an  opinion  that  the  action 
Stats  Wis.  1913,  providing  for  the  still  exists. 
recovery  of  treble  damages  in  case 


Chapter  LXXXL]  1293  [Form  1769. 

WHEREFORE  the  plaintiff  demands  judgment  against 

the  defendant  for  the.  sum  of dollars  [three  times  the 

actual  damage]  besides  the  costs  of  this  action. 


1769.  Complaint  by  state  against  member  of  board  of 
review  to  recover  forfeiture  for  intentional  omis- 
sion of  property  from  tax  roll  (sustained  in  State 
V.  Zillman,  121  Wis.  472;  98  N.  W.  543). 

The  above  named  plaintiff,  by  A B . . . . ,  district  at- 
torney of   county,  complains  of  the  above  named 

defendant,  and  for  cause  of  action  alleges: 

I.  That  the  defendant  is  indebted  to  the  plaintiff  in  the 
sum  of  two  hundred  and  fifty  dollars,  in  accordance  with  the 
provisions  of  section  five  of  chapter  three  hundred  and  sev- 
enty-nine laws  of  the  state  of  Wisconsin,  passed  in  the  year 
1901,  entitled,  "An  act  providing  for  the  punishment  of 
assessors  and  tax  payers  for  asking,  accepting,  soliciting  or 
giving  bribes,  favors  or  rewards  in  the  matter  of  the  assess- 
ment or  valuation  of  property,  imposing  forfeitures  for  vio- 
lations of  the  law  by  assessors  or  boards  of  review  and  de- 
claring contracts  void,  made  to  influence  the  valuation  of 
property  for  taxation,"  and  that  the  particular  offense  and 
delinquency  for  which  this  action  is  brought  is  that  the  said 
E.  . . .  F. . .  .,  defendant,  was  at  the  time  hereinafter  men- 
tioned, a  member  of  the  board  of  review  for  the  assessment 

district  of  the  village  of in  said  county,  by  virtue  of 

the  said  defendant  being  then  and  there  the  president  of 
said  village  of   

II.  That  on  the day  of ,  in  the  year  19. ., 

the  defendant  herein  named,  and  G....   H ,  village 

clerk,  and  J.  . .  .  K. .  .  .,  assessor  of  said  village  of , 

each  being  members  of  said  board  of  review  by  virtue  of  being 

respectively  clerk  and  assessor  of  said  village  of ,  did 

meet  and  organize  and  act  as  a  board  of  review  in  and  for 

the  assessment  district  comprising  the  said  village  of , 

and  the  aforesaid  J.  .  . .  K. .  .  .,  the  assessor  of  said  assess- 
ment district  comprising  the  said  village  of ,  and  the 

aforesaid  J. . . .  K. . . .,  the  assessor  of  said  assessment  dis- 
trict, comprising  the  village  of aforesaid,  did  then  and 

there  lay  before  said  board  of  review  his  assessment  roll  of 


Form  1770.]  1294  [Chapter  LXXXI. 

real  property,  and  all  the  sworn  statements  made  by  others 
and  valuations  made  by  him,  the  said  assessor,  of  personal 
property  and  bank  stock. 

III.  That  the  said  defendant  as  member  of  said  board  of 
review  in  said  assessment  district  did  then  and  there  inten- 
tionally omit,  and  did  then  and  there  intentionally  agree 
with  the  said  G . . . .  H . . . . ,  village  clerk,  as  member  of  said 
board  of  review,  to  omit  from  assessment  a  large  amount  of 
personal  property,  amounting  in  value,  as  appeared  from 
said  sworn  statements  and  assessment  roll  of  said  assessor, 

the  sum  of dollars,  all  of  which  property  was  then  and 

there  liable  to  taxation  in  said  assessment  district,  comprising 
the  said  village  of 

WHEREFORE  the  plaintiff  demands  judgment  against 
the  defendant  for  the  sum  of  two  hundred  and  fifty  dollars, 
and  the  costs  of  this  action. 

A....  B.... 
District  Attorney  for 
[Veri/f,cation.]  County. 


1770.    Outline  of  complaint  on  saloonkeeper's  bond  (Min- 
nesota). 

I.  [Allege  that  the  defendant  kepi  a  saloon  for  the  sale  of 
intoxicating  liauors  under  a  license  issued  to  him  by  the  city 
council  of  the  city  in  question,  giving  the  date  of  the  license.] 

II.  [Allege  that  in  order  to  procure  said  license  the  defendant 
saloonkeeper  as  principal,  and  the  other  defendants  as  sureties, 
executed  and  filed  a  bond,  giving  the  date  of  the  bond  and  a 
copy  of  it,  and  that  such  bond  was  duly  accepted  by  the  council 
of  the  city  and  the  license  issued  thereon.] 

III.  [Allege  the  facts  upon  which  the  cause  of  action  arises, 
as,  for  instance,  that  the  defendant  saloonkeeper  unlawfully 
kept  his  saloon  open  and  sold  intoxicating  liquors  to  men  who 
were  habitual  drunkards,  whereby  they  became' so  intoxicated 
that  one  of  them  drew  a  revolver  and  shot  the  plaintiff's  husband, 
or  otherwise  state  the  facts  upon  which  the  cause  of  action  is 
based.] 

IV.  [Allege  that  said  husband  left  surviving  him  the  plain- 
tiff, his  wife,  and  their  children,  naming  them  and  giving  their 
ages.] 


Chapter  LXXXL]  1295  [Form  1770. 

• 

V.  [That  upon  the day  of ,19..,E F 

a  court  commissioner,   duly  made  an  order  authorizing  the 
plaintiff  to  maintain  this  action  on  said  bond.] 

VI.  [That  by  reason  of  the  premises  the  defendants  are  in- 
debted to  the  plaintiff  in  the  sum  of dollars,  no  part 

of  which  has  been  paid,  although  demanded.] 

WHEREFORE,  etc. 


CHAPTER  LXXXII. 


MISCELLANEOUS  COMPLAINTS. 


1771.  By  son  of  deceased  person, 

for  malicious  mutilation  of 
corpse. 

1772.  Complaint  by  guardian  of  in- 

sane wife  against  mother- 
in-law  and  others  for  con- 
spiracy to  alienate  the 
affections  of  husband  and 
deprive  her  of  support,  the 
husband  being  joined  as  a 
defendant. 

1773.  Complaint  by  trustee  of  the 

title  of  real  estate  inter- 
pleading rival  claimants 
and  their  creditors,  and 
praying  for  determination 
of  their  rights. 

1774.  Complaint  by  tenant  against 

landlord  and  another  ten- 
ant for  negligently  over- 
loading upper  floors  of  a 
building  causing  collapse  of 
building. 

1775.  Complaint  by  owner  of  live- 

stock shipped  in  another's 
name  against  commission 
merchant,  for  proceeds  of 
sale. 

1776.  Complaint  for  personal   in- 

juries from  defendant's 
negligence,  and  to  set  aside 
release  obtained  by  fraud. 

1777.  Complaint  for  conspiracy  by 

several,  to  procure  an  un- 
lawful abortion  upon  the 
plaintiff,  and  the  accom- 
plishment thereof. 

1778.  Complaint  under  Wis.  stats. 

to  recover  treble  the 
amount  of  usurious  interest 
paid  upon  a  loan  of  money. 


1779.  Complaint  by  several  ripar- 

ian owners,  jointly,  to  re- 
strain an  upper  owner  from 
wrongfully  diverting  water 
from  plaintiff's  lands. 

1780.  Complaint   in   equity   for   a 

continuing  trespass  caused 
by  building,  and  main- 
taining a  stone  foundation 
wall  on  plaintiff's  lot. 

1781.  Complaint     against     surety 

company,  upon  an  under- 
taking given  to  release 
garnishment,  and  pay 
judgment  under  Wis.  stats. 

1782.  Complaint  by  creditor  of  de- 

ceased person  to  reach 
lands  purchased  by  de- 
ceased, and  conveyed  to 
another,  and  subject  them 
to  a  trust  in  favor  of 
creditors,  under  Wis.  stats. 

1783.  Complaint  to  enjoin  use  of 

trademark  and  label,  and 
to  recover  damages. 

1784.  Complaint  by  grantee  of  real 

estate,  whose  deed  was  un- 
recorded, against  grantor 
for  conveying  same  to  an 
innocent  purchaser. 

1785.  Complaint    for    maliciously 

filing  lis  pendens  and  pre- 
venting sale  of  plaintiff's 
land. 

1786.  Outline     of     complaint     by 

chattel  mortgagee  as  in- 
tervener in  an  action  by  the 
mortgagor  against  wrong- 
doer for  destruction  of  the 
mortgaged  property. 

1787.  Outline     of     complaint    for 


Chapter  LXXXIL] 


1297 


[Contents. 


damages  on  account  of 
change  of  street  grade. 

1788.  Complaint  by  surety  to  com- 

pel principal  to  pay  the 
debt  for  which  surety  is 
bound.     (Minnesota.) 

1789.  Outline  of  complaint  for  in- 

jury to  business  from  sale 
of  impure  food. 

1790.  Outline  of  complaint  against 

sheriff  and  purchaser  on 
execution  to  set  aside  levy 
upon  plaintiff's  homestead. 

1791.  Outline  of  complaint  for  re- 

fusal to  transfer  corporate 
stock  on  books. 

1792.  To  compel  issuance  of  cor- 

porate stock  certificate. 

1793.  Outline  of  complaint  to  en- 

join city  from  issuing  mu- 
nicipal bonds  because  of 
illegality. 

1794.  For  redelivery  of  pledge  and 

an  injunction  against  its 
sale  or  transfer.  (Con- 
necticut Pr.  Act.) 

1795.  Outline  of  complaint  by  cor- 

poration against  its  own 
director  for  neglect  of  duty. 

1796.  Statutory    action    to    deter- 

mine boundary  lines. 

1797.  Outline  of  complaint  by  ex- 

ecutor for  construction  of 
will. 

1798.  By  stockholder  against  busi- 

ness corporations  and  its 
directors  for  misconduct  of 
directors. 

1799.  Complaint    by    receiver    of 

foreign  mutual  insurance 
company  to  recover  an 
assessment  on  premium 
note. 

1800.  Complaint     under     milldam 

act  by  landowner  whose 
lands  are  flowed.  (Wis- 
consin.) 

1801.  Complaint  in  action  to  con- 

demn land  for  public  use 
82 


by  municipal  corporation. 

1802.  The  same,  by  railroad  corpo- 

ration. 

1803.  To  enjoin  members  of  a  labor 

union  from  conspiracy  to 
boycott  and  from  picket- 
ing. 

1804.  By  riparian  owner  of  lands  in 

various  counties  to  re- 
strain diversion  of  waters 
of  a  river  flowing  through 
the  lands,  and  to  recover 
damages  for  past  diver- 
sions. 

1805.  To  restrain  diversion  of  sur- 

face and  percolating  waters 
resulting  in  damage  to 
plaintiff's  orchard. 

1806.  To  establish  right  to  the  use 

of  pipe  line  for  irrigating 
purposes  across  defend- 
ant's land  and  enjoin  inter- 
ference therewith. 

1807.  Complaint    in      equity     by 

owner  of  land  to  restrain 
defendants  from  damming 
a  river,  digging  irrigating 
ditches  and  trespassing  on 
plaintiff's  lands. 

1808.  Complaint  by  married  wom- 

an as  a  sole  trader. 

1809.  Complaint  in  action  agains 

married  woman  as  sole 
trader. 

1810.  By  pledgor  of  goods,  to  ob- 

tain an  accounting  and  for 
an  injunction  restraining 
their  sale. 

1811.  For  forcible  entry  and  unlaw- 

ful detainer. 

1812.  For  forcible  detainer.    (Cali- 

fornia.) 

1813.  For  unlawful  detainer.   (Cali- 

fornia.) 

1814.  Complaint   in   unlawful    de- 

tainer.   (Arkansas.) 

1815.  Complaint  by  receiver  of  in- 

solvent corporation  to  re- 
cover  assessment    on    the 


Form  1771.] 


1298 


[Chapter  LXXXII. 


stock  against  one  who 
transferred  his  stock  to  an 
insolvent  third  person. 

1816.  Complaint    by    assignee    in 

bankruptcy  of  insolvent 
corporation  against  a 
stockholder  who  has  with- 
drawn, to  recover  the 
amount  received  from  the 
corporation  on  such  with- 
drawal. 

1817.  Complaint    by    corporation 


employer  to  set  aside 
award  of  industrial  com- 
mission under  workmen's 
compensation  act.  (Wis- 
consin.) 

1818.  The  same. 

1819  The  same,  by  municipal  cor- 
poration. 

1820.  Complaint  against  principal 
and  agent  for  relief  against 
one  or  the  other  in  the 
alternative.      (Wisconsin.) 


1771.  By  son  of  deceased  person,  for  malicious  mutila- 
tion of  corpse  (precedent  sustained  in  Koerber 
V.  Patek,  123  Wis.  453;  102  N.  W.  40). 

The  above  named  plaintiff,  by  0 ... .  P . . . . ,  his  attorney, 
complains  of  the  defendant,  and  for  cause  of  action  alleges: 

I.  That  on  or  about  the  ....  day  of ,  19 . . ,  E .  . .  . 

F ,  mother  of  plaintiff,  died  at ,  in  the  city  of 

. . . .,  county  of ,  state  of 

II.  That  plaintiff  is  the  son  and  heir  of  said  E. . . .  F. . . ., 
deceased,  and  was,  shortly  before  the  death  of  said  E . . . . 
F. . . .,  instructed,  requested,  authorized  and  charged  by  said 
E. . . .  F. . . .  to  take  charge  of  her  body  after  her  death  and 
see  to  it  that  her  said  body  after  death  be  decently  and 
properly  buried;  that  plaintiff  is  the  only  person  that  has 
had  any  interest  in  the  said  remains  of  said  deceased. 

III.  That  upon  the  death  of  said  E. . . .  F. . . .,  the  exclu- 
sive legal  right  and  duty  of  protecting,  caring  for,  and  giving 
and  providing  a  decent  and  respectable  burial  to  and  for, 
the  said  dead  body  of  the  said  E. . . .  F. . . .  devolved  upon 
this  plaintiff. 

IV.  That  upon  the  death  of  said  E. . . .  F. . . .,  plaintiff, 
in  the  exercise  of  his  right  and  duty,  took  charge  of  the  said 
dead  body  of  the  said  E ....  F ... .  and  caused  the  same  to  be 
removed  from  the  said  hospital  to  the  residence  of  plaintiff  at 

street,  in  the  said  city  of ,  and  plaintiff  then 

and  there  took  charge  of  said  dead  body  and  duly  attended 
to  having  the  same  properly  prepared  for  burial. 

V.  That  thereafter,  to-wit,  on  or  about  the day  of 

19 . .,  and  while  said  dead  body  was  in  the  possession, 

care  and  custody  of  plaintiff,  the  defendant  came  to  plaintiff's 


Chapter  LXXXIL]  1299  [Form  1771. 

said  residence  and  requested  of  plaintiff  the  permission  to 
merely  examine  the  stomach  of  said  dead  body,  which  said 
request  the  plaintiff  granted  the  defendant,  but  that  de- 
fendant did  then  and  there,  wilfully,  maliciously,  fraudu- 
lently, without  the  authority  and  against  the  wish  of  plain- 
tiff, and  in  violation  and  disregard  thereof,  without  any 
authority  of  law,  and  trespassing  upon  the  rights  of  plaintiff 
as  custodian  of  said  dead  body  and  as  son  and  heir  aforesaid, 
and  outraging  said  dead  body  and  also  the  plaintiff,  and 
against,  as  well,  the  good  morals  and  peace  of  the  community, 
with  sharp  instruments  cut  out,  remove  from  said  dead 
body,  and  carry  away,  the  stomach  of  said  dead  body,  and 
defendant  has  ever  since  refused  and  neglected  to  return 
said  stomach,  and  consequently  plaintiff  was  obliged  to  and 
did  bury  said  dead  body  of  his  said  mother  on  or  about  the 

....  day  of 19. .,  wdthout,  and  separate  and  apart, 

from  the  said  stomach. 

VI.  That  after  the  removal  of  said  stomach  by  defendant 
from  said  dead  body  as  aforesaid,  and  before  the  burial  of 
said  body  as  aforesaid,  plaintiff  expressly  requested,  de- 
manded and  implored  the  defendant  to  replace  said  stomach 
in  its  proper  place  in  said  dead  body,  but  that  defendant  al- 
ways refused  and  neglected  so  to  do. 

VII.  That  by  reason  of  the  acts  of  the  defendant  afore- 
said, the  rights  of  plaintiff,  who  was  a  loving  and  devoted  son 
of  said  E . . . .  F . . . . ,  have  been  recklessly  and  wilfully  dis- 
regarded and  trespassed  upon,  and  plaintiff's  feelings  severely 
and  greatly  injured,  and  the  devotion,  love  and  respect  that 
plaintiff  entertained  for  his  dead  mother  have  been  shocked 
and  wounded,  and  the  plaintiff  has  suffered  greatly  there- 
from, both  in  mind  and  body,  to  his  damage,  to-wit,  in  the 
sum  of dollars. 

WHEREFORE  plaintiff  demands  judgment  against  the 

defendant  for  the  said  sum  of dollars,  together  with 

the  costs  and  disbursements  incurred  in  and  about  this 
action, 

0 P ,  Plaintiff's  Attorney. 


Form  1772.]  1300  [Chapter  LXXXII. 

1772.  Complaint  by  guardian  of  insane  wife  against 
mother-in-law  and  others  for  conspiracy  to 
alienate  the  affections  of  husband  and  deprive 
her  of  support,  the  husband  being  joined  as  a 
defendant  (adapted  from  complaint  sustained  in 
Randall  v.  Lonstorf,  126  Wis.  147;  105  N.  W. 
663;  see  note  to  form  1395). 

Now  comes  the  plaintiff  above  named,  by  0 ... .  P . . . . , 
his  attorney,  and  complaining  of  the  defendants,  respectfully 
shows  to  the  court  as  follows: 

I.  That  the  plaintiff  is  and  for  many  years  last  past 

has  been,  a  resident  of  the  state  of and  was,  upon 

due  and  proper  proceedings  had  in  the   county  court  of 

county,  and  on  the  ....  day  of ,  19.  .,  dul^^ 

appointed  the  guardian  of  the  person  and  property  of  one 
L ....  M ...  .  theretofore  in  said  county  court  duly  adjudged 
an  insane  person.     That  this  plaintiff  duly  qualified  as  such 

guardian  and  ever  since  said ,  19.  .,  has  been  and  still 

is  such  guardian. 

II.  Plaintiff   further   shows    that   the    aforesaid    L. . . . 

M . . . .  was  born  and  always  lived  in  the  city  of ;  that 

the  said  L.  .  .  .  M .  . . .,  prior  to  the  marriage  hereinafter  set 
forth  was  named  L. . . .  A.  . . .,  and  after  attending  the  pub- 
lic schools  of  said  city  of ,  was  employed  in  a  retail 

store  in  said  city  of and  earned  her  livelihood  thereby. 

III.  That  for  a  number  of  years  prior  to ,  19 .  . ,  the 

said  L . , .  .  M ....  was  courted  by  0 ...  .  M .  . . . ,  one  of  the 
defendants  named  herein;  and  that  thereafter,  to-wit,  on 

the  ....  day  of ,  19.  .,  at  the  city  of ,  in  the 

state  of ,  the  said  L . . . .  M  . . . . ,  then  L . . .  .  A .... , 

intermarried  with  the  said  0 .  .  .  .  M . . .  .  and  that  said  mar- 
riage was  solemnized  in  the  presence  of  a  married  sister  of 
the  said  0 .  .  . .   M .  . . . ,  and  her  husband,  who  were  then 

living  in  said  city  of ;  that  the  said  0 .  . . .  M .  . .  . , 

and  said  L. . .  .  M. .  .  .  ever  since  have  been  and  still  are 
husband  and  wife,  and  that  ever  since  the  said  marriage  the 
real  home  and  residence  of  said  0 .  .  .  .  M .  .  . .  and  of  said 
L .  .  .  .  M . . . .  has  been  the  said  city  of 

IV.  That  during  the  first  years  of  the  married  life  of  said 
L ....  AI ...  .  and  0 ....  M  ...  .  and  until  the  carrying  out  of 
the  conspiracy,  confederacy  and  agreement  hereinafter  re- 


Chapter  LXXXIL]  1301  [Form  1772. 

cited  between  the  defendants,  the  said  L....  M....  and 
the  said  0 . .  .  .  M .  .  .  .  Uved  happily  and  pleasantly  together 
and  that  for  about  two  years  they  lived  together  at  the 
home  of  the  parents  of  the  said  L .  . . .  M . . . .  and  were  for  a 
time  partially  supported  and  taken  care  of  by  said  parents. 

V.  That  the  defendants  C M ,  D M 

and  E ....  M .... ,  are  adult  children  of  the  defendant  H . . . . 
M.  .  . .,  and  are  entirely  dependent  upon  her  for  their  sup- 
port and  maintenance  and  always  have  been  so,  and  all 
reside  with  the  said  defendant  H . . . .  M . . . .  in  the  said 
city  of 

VI.  That  the  defendant  0  ....  M ....  is  also  a  son  of  the 
defendant  H . . .  .  M  . .  . . ,  and  the  husband  of  L . . . .  M  .  .  .  . , 
as  hereinbefore  recited  and  is  a  man  of  weak  and  irresolute 
character  without  any  settled  occupation  or  position  and, 
as  plaintifT  is  informed  and  verily  believes  at  all  times  since 
his  marriage  to  said  L. .  . .  M .  .  .  .  has  been  and  still  is  of 
sufficient  ability  to  maintain  himself  and  his  wife  L .  .  .  . 
M . .  .  .  and  to  earn  the  means  with  which  to  support  her, 
yet  he  has  been  for  years  last  past  and  still  is  to  a  great 
extent  dependent  for  all  that  he  eats,  drinks  and  wears 
and  for  his  support,  upon  the  bounty  of  his  mother,  the  de- 
fendant H . . . .  M .  .  . . ,  and  small  sums  advanced  to  him  at 
various  times  by  the  defendant  H .  . .  .  M ....  or  other 
members  of  the  defendant  family;  and  that  although  at  times 
said  defendant  0 . . .  .  M .  .  .  .  does  obtain  and  have  consid- 
erable property  through  his  spasmodic,  but  rare,  attacks 
of  labor  or  from  speculation,  or  gift,  it  is  soon  dissipated 

on  said  defendant  0 . . . .  M or  others  other  than  the 

said  L M 

VII.  That  H M is  the  widow  of  one  N 

M . . .  . ,  and  is  a  woman  of  great  wealth,  and  now  lives  and  for 
many  years  last  past  has  lived  in  great  luxury  and  frequently 
travels  in  Europe  and  over  the  United  States  and  with  cer- 
tain others  of  the  defendants  herein  as  more  fully  appears 
hereinafter;  that  she  is  a  woman  of  imperious  will  and  dis- 
position and  has  almost  complete  control  over  the  other 
defendants  herein  and  keeps  them  in  practically  complete 
subjection  to  her  will,  wishes  and  whims,  and  that  the 
property  of  said  H .  .  . .  M .  .  .  .  is  of  such  a  great  am.ount 
that  the  individual  shares  of  the  children  of  said  H . . . . 


Form  1772.]  1302  [Chapter  LXXXII. 

M . . . .  upon  the  decease  of  said  H . . . .  M . . . .  will  amount 
to  the  neighborhood  of dollars  each  at  least. 

VIII.  Plaintiff  further  alleges  upon  information  and 
belief,  that  the  defendants,  other  than  0. . . .  M. . . ,,  and 
particularly  the  defendant  H ....  M ... .  were  opposed  to  the 
intermarriage  of  said  defendant  0 . . . .  M . . . .  with  the  afore- 
said L . . . .  M . . . .  at  the  time  thereof,  on  the  grounds,  as 
plaintiff  is  informed  and  verily  believes,  that  the  station  in 
life  of  the  said  L . . . .  M . . , .  was  not  of  the  exalted  position 
that  the  defendants  arrogate  to  themselves  and  that  the 
family  from  which  said  L .  . . .  M . .  . .  descended  were  not 
blessed  with  any  considerable  amount  of  worldly  goods  and 
not  members  of  the  same  select  circle  in  w  hich  the  defendants 
herein  fondly  believe  they  are  enshrined. 

IX.  Plaintiff  further  alleges  upon  information  and  belief, 
that  shortly  after  the  intermarriage  of  the  defendant  0 . . . . 
M  . . . .  with  L . . . .  M . . .  .  as  aforesaid,  the  other  defendants 
herein  maliciously,  wickedly  and  fraudulently  conspired  and 
agreed  together  and  for  the  purpose  of  separating  the  defend- 
ant 0 . .  . .  M . . . .  from  the  said  L , . . .  M . . . .  so  as  to  de- 
prive the  said  L. . . .  M . . . .  of  the  support  and  assistance  of 
the  said  0 . , . .  M . . . .  and  to  alienate  and  destroy  the  affec- 
tion of  the  defendant  0 . . . .  M , . . .  towards  the  said  L. . . . 
M . . . .,  and  to  prevent  and  interfere  with  the  said  0 . . . . 
M. . . .  providing  the  said  L. . . .  M . . . .  with  the  necessaries 
of  life  and  further  for  the  purpose  of  influencing  the  said 

0 . . . .  M .  . .  .  to  remain  without  the  state  of   and 

beyond  the  jurisdiction  of  its  courts  and  to  keep  and  maintain 

the  said  0 . . . .  M . . . .  so  without  the  state  of and 

beyond  the  jurisdiction  of  its  courts  that  service  of  process 

issuing  out  of  any  of  the  courts  of  the  said  state  of 

upon  said  O . . . .  M . . .  .  upon  behalf  of  said  L . . . .  M . . . . 
might  be  prevented  and  rendered  of  no  force  and  effect  and 
to  prevent  and  to  avoid  any  action  being  commenced  by 
the  said  L. . . .  M. . . .,  or  the  obtaining  of  any  decree  or 
judgment  of  any  court,  civil  or  criminal,  to  compel  the  said 

0 .  M ....  to  support  and  maintain  the  said  L ....  M ... . 

under  any  of  the  statutes  of  the  state  of ,  whether  civil 

for  a  divorce  suit  or  criminal  for  the  unlawful  desertion  and 
abandoning  of  the  said  L .  . . .  M . . . .  by  0 ... .  M . . . .  or  to 
prevent  the  said  L. . . .  M. . . .  from  obtaining  any  relief, 
support  or  maintenance  from  the  said  0 ....  M ... . 


Chapter  LXXXII.]  1303  [Form  1772. 

X.  Plaintiff  further  alleges  upon  information  and  belief, 
that  the  said  defendants  for  the  carrying  out  of  said  con- 
spiracy, caused  and  procured  the  discharge  of  the  said 
O . .  . .  M , . . .  from  various  places  in  which  he  was  employed 
during  the  time  he  lived  wih  the  said  L . . . .  M . . . .  for  the 
express  purpose  of  preventing  him  from  supporting  the  said 
L . .  . .  M . , . .  and  to  keep  her  as  aforesaid  in  poverty  and 
destitution  and  repeatedly,  falsely  and  fraudulently  stated 
to  said  0 . . . .  M . . . .  for  the  further  carrying  out  of  the  con- 
spiracy aforesaid,  that  the  said  L M . . . .  was  untrue  and 

unfaithful  to  him,  the  said  0 . . . .  M . . . . 

XL  Plaintiff  further  alleges  upon  information  and  belief, 
that  to  further  carry  out  the  purpose,  agreement,  conspiracy 
and  confederacy  of  the  said  defendant,  the  defendants  have 
repeatedly  urged  the  said  0 . .  .  .  M . . . .  to  desert  and  leave 
the  said  L. . . .  M . . . .,  his  lawful  wife,  as  aforesaid,  and  to  go 

beyond  the  state  of and  have  provided  the  said  0 

M . . . .  with  large  sums  of  money  to  so  go  without  the  state 
of and  remain  therefrom,  and  certain  of  the  defend- 
ants herein  have  taken  said  0 ....  M ...  .  upon  a  trip  to  Eu- 
rope and  furnished  large  and  lavishly  for  his  expenses  on  the 
same  for  the  express  purpose  of  carrying  out  the  end  and 
object  of  said  conspiracy  aforesaid;  and  have  so  influenced 
the  said  0 . . . .  M . . . .  by  said  means  and  by  threats  that 
the  defendant  H . . . .  M  .  . . .  would  disinherit  said  0 . . . . 
M . . . .  and  would  so  arrange  her  last  will  and  testament 
that  said  0 . . . .  M . . . .  would  be  given  no  part  or  parcel  of 
her  vast  wealth  and  estate,  that  said  0 ....  M ... .  has  finally 
joined  the  other  defendants  named  herein  in  their  nefarious 
and  unholy  scheme  and  confederacy  aforesaid. 

XII .  Plaintiff  further  alleges  upon  information  and  be- 
lief that  subsequent  to  the  appointment  of  the  plaintiff, 
guardian  of  said  L . . . .  M . . . .  as  aforesaid,  the  said  defend- 
ants have  continued  in  the  aforesaid  unlawful,  wicked  and 
malicious  conspiracy  and  confederacy  to  keep  and  maintain 
the  said  0 . . . .  M . . . .  without  the  state  of as  afore- 
said and  beyond  the  jurisdiction  of  its  courts,  both  civil  and 
criminal,  and  to  keep  and  maintain  the  said  L. . . .  M. . . . 
in  poverty  and  destitution  and  to  force  her,  if  possible,  to 
consent  and  to  allow  of  a  judgment  of  divorce  to  be  obtained 
by  the  said  defendant  0 .  .  .  .  M . . . .  in  some  other  jurisdic- 
tion than  that  of  the  stale  of   where  it  would  be 


Form  1772.]  1304  [Chapter  LXXXII. 

impossible  on  account  of  the  poverty  and  condition  of  the 
said  L. . . ,  M . . . .  to  appear  or  to  protect  her  rights  or  ob- 
tain any  relief  whatever  as  against  said  0 . . .  .  M  . .  .  . 

XIII.  Plaintiff  further  alleges  upon  information  and 
belief,  that  for  the  further  carrying  out  of  said  conspiracy, 
the  said   0 . . .  .    IVI .  . . .    commenced   several   divorce  suits 

without  the  state  of   ;  one  in  the   state  of   

against  the  said  L. . . .  M. . . .,  which  was  dropped  by  said 
defendant  0. .  .  .  M. . . .,  and  thereafter  and  since  the  com- 
mitment of  the  said  L. . . ,  M .  .  .  .  as  aforesaid  to  the 

county  hospital  for  the  insane,  and  the  adjudication  of  her  as 
an  insane  person  as  aforesaid,  commenced  a  divorce  suit  in 

the court  of  the  state  of for county, 

in  which  the  complaint  therein  is  verified  by  the  said  0 .  . .  . 

M. . . .,  on  or  about ,  19. .,  and  based  upon  false  and 

untrue  allegations  and  containing  no  statement  of  the  fact, 
then,  as  plaintiff  is  informed  and  verily  believes,  well  known 
to  said  defendant  0....  M....,  of  the  commitment  of 
said  L. . . .  M.  . . .  and  of  her  insane  condition,  nor  of  the 
appointment  of  this  plaintiff  as  guardian  aforesaid,  and 
plaintiff  verily  believes  that  the  same  was  for  the  purpose  of 
imposing  upon  and  deceiving  said  court.  That  the  other 
defendants  herein  with  knowledge  thereof  have  assisted  and 
are  assisting  the  said  0 .  .  .  .  M . .  .  .  with  aid,  money  and  ad- 
vice in  carr^'ing  on  and  continuing  said  false  and  fraudulent 

attempt  at  divorce  in  the  said  state  of ,  all  for  the 

purposes    aforesaid. 

XIV.  That  the  said  L. . . .  M. . . .  has  now  and  for  the 
two  or  more  years  last  past  has  had  a  good  and  valid  action 
for  divorce  against  said  defendant  0 . . .  .  M . . . .  for  the 
wilful  desertion  of  said  L. . . .  M . . . .  by  said  0 .  . .  .  M  .  .  . . 
for  a  term  of  more  than  one  year,  and  for  a  further  cause, 
the  cruel  and  inhuman  treatment  of  said  L .  .  .  .  M ....  by 
said  0 . .  .  .  M . . . .  and  for  a  further  cause  that  the  said 
defendant  0 .  .  .  .  M .  . . .,  being  of  suiTicient  ability,  has  and 
does  refuse  and  neglect  to  provide  for  said  L .  .  . .  jM  .  .  . . , 
and  for  a  further  cause  that  the  conduct  of  said  defendant 
O . . . .  M . . .  .  towards  said  L . . . .  IVI ... .  is  and  has  been 
such  as  may  render  it  unsafe  and  improper  for  her  to  live 
with  him. 

XV.  That  the  said  L ....  M ....  is  without  means  or  pro- 
perty whatsoever  of  her  own  and  that  there  are  no  means 


Chapter  LXXXIL]  1305  [Form  1773. 

belonging  to  said  L. . . .  M.  . . .  coming  to  this  plaintiff  as 

guardian  of  L.  .  . .  M . . . .  sufficient  to  pay  even  the 

dollars  per  week  board  and  the   dollars  a  year  for 

clothing  required  of  the  patients  confined  and  kept  in  said 

county  hospital  for  insane  and  that  said  L ....  M ... . 

has  been  since  her  commitment  and  still  is  a  charge  upon 

county  and  required  to  be  supported  and  cared  for 

by  said  county  as  other  paupers  are.  That  the  conspiracy 
and  agreement  aforesaid  between  the  defendants  and  the 
carrying  out  of  the  same  has  beggared  the  said  L. .  .  .  M  . .  . ., 
deprived  her  of  her  support,  alienated  the  affections  of  her 
said  husband,  unseated  her  intellect,  and  has  deprived 
her  and  this  plaintiff,  as  her  guardian  aforesaid,  of  all  the 
rights  hereinbefore  specified,  existing  in  favor  of  said  L. . . . 
M . . . .  and  this   guardian  as  against  the  said  0 . . .  .  M .  . . ., 

all  to  the  plaintiff's  damage  in  the  sum  of dollars. 

WHEREFORE  plaintiff  demands  judgment  against  the 

said  defendants  in  the  sum  of dollars,  together  with 

his    costs    and     disbursements. 

O....    P.... 
[Verification.]  Plaintiff's  Attorney. 

1773.  Complaint  by  trustee  of  the  title  of  real  estate  in- 
terpleading rival  claimants  and  their  creditors, 
and  praying  for  determination  of  their  rights 
(precedent  in  Winn  v.  Itzel,  125  Wis.  19;  103  N. 
W.  220). 

And  now  comes  the  said  plaintiff  and  pursuant  to  the  order 
and  direction  of  the  court,  for  a  supplemental  and  amended 
complaint  in  this  action,  respectfully  shows  unto  said  court: 

I.     That  on  and  prior  to  the  ....  day  of ,  19 . . ,  one 

L. . . .  M .  .  .  .  was  the  owner  in  fee  simple  and  in  possession 
of  the  following  described  land  in  the  fourth  ward  of  the  city 

of ,  viz.  [give  description].  That  on  that  day  the  said 

L. .  .  .  M  .  .  .  .  made,  executed  and  delivered  to  this  plaintiff  a 
deed  in  trust  of  said  premises,  upon  certain  trusts,  one  of  said 
trusts  being  to  convey  the  same  to  such  persons  as  the  said 
L.  . . .  M.  .  .  .  should  by  instrument  in  writing  or  by  will 
appoint,  a  copy  of  which  is  hereto  attached,  marked  "Exhibit 
A."     That  upon  the  execution  of  said  deed  this  plaintiff 


Form  1773.]  1306  [Chapter  LXXXII. 

entered  into  possession  of  said  property  and  has  since  re- 
mained,   and   is   now,    in   possession   thereof. 

II.  This  plaintiff  further  shows  that  on  or  about  the  .... 

day  of ,  19 . . ,  the  said  L. . . .  M . . . . ,  who  was  then  a 

resident  of  the  city  of in  the  said  county,  departed 

this  Ufe  testate.     That  thereafter,  and  on  the  ....  day  of 

,  19..,  due  proceedings  in  that  behalf  having  been 

first  duly  had,  the  last  will  and  testament  of  the  said  L. . . . 
M . . . .  and  the  codicil  thereto  were  duly  admitted  to  pro- 
bate by  the  county  court  of county.     That  copies  of 

such  will  and  codicil  are  hereto  annexed  marked  "Exhibit 
B"  and  "Exhibit  G,"  and  made  a  part  hereof.   That  the  said 

X . . . .  and  Y mentioned  in  said  will  having  filed  in  said 

court  their  refusal  to  serve  as  executors,  this  plaintiff  was 
appointed  by  said  court  executor  of  said  will,  and  thereupon 
this  plaintifT  took  the  oath  and  duly  qualified  as  such  execu- 
tor, and  letters  testamentary  were  duly  issued  to  him  out  of 
and  under  the  seal  of  said  court  as  sole  executor  of  and  under 
said  will. 

III.  This  plaintifT  further  shows  that  on  the  ....  day  of 
,  19 . . ,  the  said  defendant  C . . . .  D . . . .  filed  for  re- 
cord in  the  office  of  the  register  of  deeds  of county  a 

deed  purporting  to  have  been  executed  by  the  said  L . . . . 

M . . . .  on  the  ....  day  of ,  19 . . ,  and  that  said  deed 

was  thereupon  duly  recorded  by  the  register  of  deeds  on  said 

day  in  his  said  office,  in  volume  ....  of  deeds  on  pages 

and  .... 

IV.  And  this  plaintiff  further  shows  that  the  said  C . . . . 
D claims  that  the  said  deed  was  duly  executed  and  de- 
livered to  her  by  the  said  L . . . .  M . . . .  on  the  day  the  same 
bears  date,  and  that  the  same  amounts  to  an  execution  by 
the  said  L . . . .  M . . . .  of  the  power  reserved  in  said  deed  to 
appoint  the  person  to  whom  this  plaintiff  shall  convey  the 
said  lot  nine.  That  the  said  C . . . .  D . . . .  claims  under  and 
by  virtue  of  said  deed  to  be  the  owner  of  said  lot  nine. 

V.  This  plaintiff  further  shows  that  the  said  defendants 
V. . . .  and  W. . . .  on  the  other  hand  insist  and  claim  that  at 
the  time  of  the  execution  and  delivery  of  the  said  pretended 
deed  of  which  a  copy  is  hereto  annexed,  marked  "Exhibit  D" 
the  said  L. . . .  M. . . .  was  of  unsound  mind  and  mentally 
incapacitated  from  making  that  or  any  deed  or  contract  or 
appointment,  and  that  the  same  was  procured  by  means  of 


Chapter  LXXXIL]  1307  [Form  1774. 

the  fraud  of  the  said  C . . . .  D . . . .  and  the  exercise  of  her 
undue  influence  upon  the  said  L. . . .  M. . . .,  and  the  said 
defendants  V. . . .  and  W. . . .  demand  of  this  plaintiff  that 
he  ignore  and  treat  as  a  nulhty  the  said  pretended  deed  of 

the  said  L M . . . .  to  the  said  defendant  C D . . . . , 

and  that  he  convey  said  lot  nine  to  them  under  and  pur- 
suant to  the  terms  of  the  said  last  will  and  testament  of  the 
said  L. . . .  M. . . . 

VI.     And  this  plaintiff  further  shows  unto  the  court  that 

on  the  ....  day  of ,  19 . . ,  a  judgment  was  docketed  in 

the court  of  said  county  against  the  said  defendant 

C . . . .  D . . . .  for dollars,  in  favor  of  one  G ....  H ... . 

and  that  on  the  ....  day  of ,  19. .,  a  judgment  was 

docketed  in  said court  in  favor  of  the  said  defendant 

E . . . .  F . . . .  for  the  sum  of dollars  against  the  said 

defendant  C. . . .  D. . . .,  and  that  both  of  said  judgments 
remain  of  record  unsatisfied  in  the  office  of  the  clerk  of  the 
said  court.  That  the  said  plaintiff  is  informed  and  verily 
beheves  that  the  said  defendants  G . . . .  H .  . . .  and  E . . . . 

F claim  the  said  judgments  to  be  valid  and  subsisting 

liens  against  the  said  premises. 

That  this  plaintiff  is  in  doubt  as  to  his  duty  in  the  premises, 
and  therefore  prays  this  court  to  determine  the  question  of 
validity  or  invalidity  of  the  said  deed  to  the  said  C . . . . 
D. . . .,  and  by  its  judgment  herein  to  determine  the  rights 
of  the  parties  and  give  to  him  proper  direction  in  the  premises 
and  for  such  other  and  further  relief  as  shall  be  just  and 
according  to  equity. 

1774.  Complaint  by  tenant  against  landlord  and  another 
tenant  for  negligently  overloading  upper  floors 
of  a  building,  causing  collapse  of  building 
(sustained  in  B.  B.  C.  Co.  v.  Eees,  et  al.,  69  Wis. 
442;34N.  W.  732). 

I.     That  as  plaintiff  is  informed  and  believes,  the  said 

defendant  C . . . ,   D . . . .  was  on  said   day  of   , 

19. .,  ever  since  has  been,  and  now  is,  the  owner  of  a  brick 
block  known  as  ....  Block,  and  situated  on  ....  street  in 
the  fourth  ward  of  said  city;  that  said  block  is  four  stories 
high  above  the  basement,  and  is  divided  into  several  stores 
by  partition  walls;  that  said  stores  are  rented  by  said  de- 


Form  1774.]  1308  [Chapter  LXXXII. 

fendant  C. . . .    D. . . .   to  tenants;  that  the  north  store  of 

said  block  is  known  as  No ,    street,  and  the 

store  in  said  block  next  adjoining  on  the  south  is  known  as 

No of  said   street. 

II.     That  as  plaintiff  is  informed  and  beheves,  prior  to  the 

said   ....   day  of   ,  19. .,  the  said  defendant  C. . . . 

D. . . .  and  said  defendant  E. . . .  F. . . .  entered  into  nego- 
tiations for  the  purpose  of  leasing  from  said  defendant 
C...    D....    to   said   defendant   E....    F....    the  store 

known  as  No ,   street,  and  the  fourth  floor  of 

said  store  No , street;  that  said  defendant  E. . . . 

F. . . .  then  and  there  notified  and  informed  said  defendant 
G . . . .   D . . . .   that  the  purpose  for  which  they  wished  to 

lease  and  use  said  store  No and  said  fourth  floor  of 

said  store  No was  as  a  shop  and  warerooms  for  the 

manufacture,  storing  and  selling  of  stoves,  wire,  iron  and 
other  articles  of  great  weight;  that  they  desired  especially 

to  use  said  fourth  floor  of  said  store  No for  storing 

thereon  iron,  wire,  stoves  and  other  articles  of  great  weight, 
and  that  they  needed  for  that  purpose  a  strongly  built 
building;  that  said  defendant  C. . . .  D. . . .  then  and  there 
stated  and  represented  to  said  defendant  E .  ,  .  .  F .  .  . .  that 
said  stores  were  strongly  built  and  the  floors  thereof  capable 
of  sustaining  great  weight,  and  fit  for  the  purposes  for  which 
the  said  defendant  E . . .  .  F .  .  . .  desired  to  use  the  same  as 

aforesaid;  that  said  fourth  floor  of  said  store  No 

w^ould  sustain,  and  that  he,  said  E. . . .  F. . . .  could  safely 
store  and  place  thereon  weight  to  the  amount  of  two  hundred 
pounds  to  each  square  foot  of  said  floor;  that  thereupon  the 
said  defendant  E. . .  .  F, . . .,  relying  upon  said  statements 
and  representations  of  said  defendant  C .  ,  .  .  D .  .  .  . ,  then 
and  there  agreed  to  lease  said  premises  from  said  defendant 

G. . .  .  D and  that  pursuant  thereto  the  latter  did  on  or 

about  the  ....  day  of ,  19.  .,  lease,  demise,  and  let 

said  store  No and  said  fourth  floor  of  said  store  No. 

....  to  the  defendant  E.  .  .  .  F.  .  .  .  as  a  shop  and  ware- 
rooms  for  the  m^anufacture,  storage  and  sale  of  stoves,  iron 
and  other  articles  as  above  stated  for  the  term  of  five  years 

from ,  19.  .,  said  lessees  yielding  and  paying  therefor 

to  said  defendant  G . . . .  D . . . .  the  annual  rent  of 

dollars. 


Chapter  LXXXII.]  1309  [Form  1774. 

III.  That  thereupon,  and  on  or  about  the  ....    day  of 

,   19.,,  the  said  defendant  E....   F....   went  into 

possession  of  said  store  No and  said  fourth  floor    of 

said  store  No ,  using  the  same  for  the  purposes  aforesaid 

under  said  lease,  and  continued  to  occupy  the  same  and 
paid  rent  therefor  to  said  defendant  C. .  . .  D . . . .  as  above 
stated,  up  to  and  including  the  time  that  said  fourth 
floor  broke  down  and  fell,  as  hereinafter  stated. 

IV.  That  it  was  understood  and  intended  at  the  time  that 
said  premises  were  leased  as  aforesajd  on  the  part  of  said  de- 
fendant that  the  same  were  to  be  used  for  the  purposes  afore- 
said, but  this  plaintiff  avers  that  said  premises,  and  espec- 
ially said  fourth  floor  of  said  store  No was  at  the  time 

said  lease  was  made,  and  ever  since  has  been  unfit  for  the 
purposes  for  which  they  were  leased  as  aforesaid;  that  said 
floor  of  said  fourth  story  was  not  strongly  built,  and  was  unfit 
for  storing  stoves,  iron,  hardware  and  other  articles  of  great 
weight;  that  it  could  not  sustain,  and  that  it  was  not  safe  to 
place  thereon  weight  to  even  the  amount  of  one  hundred 
pounds  to  the  square  foot;  that  said  representations  and 
statements  of  said  defendant  C .  . . .  D .  . . .  were  false  and 
untrue,  as  said  defendant  C . . . .  D . . . .  knew,  or  had  reason 
to  know. 

V.  And  this  plaintiff  further  shows  that  on  or  about  the 

....  day  of ,  19 .  . ,  the  said  defendant  C . . . .  D .  .  . . 

leased,  demised  and  let  to  this  plaintiff  the  first  and  second 

stories  of  said  store  No , street,  as  and  for  a  shop 

and  warerooms  for  the  manufacture  and  sale  of  billiard 
tables  and  other  merchandise,  for  the  term  of  five  years 

from    ,   19.  .,  at  and  for  the  agreed  rent  of   

dollars  a  year  for  the  first  two  years,  and dollars  a 

year  for  the  last  three  years;  that  on  or  about  said  ....  day 

of ,  19.  .,  this  plaintiff  went  into  occupation  of  said 

first  and  second  stories  of  said  store  No under  said 

lease,  using  the  same  for  the  purposes  aforesaid,  and  yield- 
ing and  paying  to  said  defendant  C .  .  .  .  D  . . . .  said  rent  until 
the  falling  of  said  fourth  floor  as  hereinafter  stated.     That 

on  or  about  the  ....  day  of ,  19.  .,  the  said  defendant 

E F ,  relying  upon  the  representations  of  said 

defendant  C .  . .  .  D .  .  .  .,  that  said  floor  was  fit  and  strong  to 
carry  a  weight  of  two  hundred  pounds  to  the  square  foot, 
and  using  said  fourth  floor  of  said  store  No for  storage 


Form  1774.]  1310  [Chapter  LXXXII. 

as  aforesaid,  carelessly  and  negligently  placed  and  stored 
thereon  a  great  amount  of  iron,  wire  and  other  articles  of 
great  weight  of  a  like  character,  weighing  in  all  about  ninety  • 
eight  thousand  pounds;  that  such  iron,  wire,  and  other  arti 
cles  were  stored  and  placed  on  said  floor  in  a  space  about 
thirty  feet  long  and  nineteen  feet  six  inches  wide,  making 
a  burden  of  about  one  hundred  and  sixty-seven  pounds 
to  the  square  foot  on  said  floor,  which  was  a  much  greater 
weight  than  is  ordinarily  put  upon  the  fourth  floor  of  a  store, 
and  more  than  he,  the  said  defendant  E. . . .  F. . . .,  would 
have  stored  on  said  floor  had  he  not  been  so  misinformed  as 
to  its  strength  by  said  defendant  C . . . .  D  . . . .  That  there- 
upon and  on  said   ....  day  of ,  19. .,  by  reason  of 

such  great  weight  of  iron,  wire  and  other  articles  placed 
thereon  as  aforesaid,  and  by  reason  of  said  floor  being  unflt  for 
the  purposes  for  which  it  was  leased  and  used  as  aforesaid, 
the  said  floor  gave  way  and  both  said  floor  and  said  iron, 
wire  and  other  articles  stored  thereon  broke  down  and 
through  the  remaining  floors  of  said  store,  including  the 
floors  occupied  by  this  plaintiff  as  aforesaid,  and  fell  into  the 
basement  of  said  building;  that  thereby  and  by  reason  of  the 
fault  and  negligence  of  said  defendants  C . . . .  D . . . .  in 
leasing  for  storage  as  aforesaid  said  premises,  and  by  reason 
of  their  misrepresentations  as  to  the  strength  of  said  fourth 

floor  of  said  store  No ,  and  by  reason  of  the  weakness  of 

said  floor  and  its  unfitness  for  the  purposes  for  which  it  was 
leased  and  used  as  aforesaid,  and  by  reason  of  the  fault  and 
negligence  of  said  defendant  E....  F....  in  storing  and 
placing  on  said  floor  such  great  weight  as  aforesaid,  thereby 
overloading  said  floor  so  that  it  fell  as  aforesaid,  the  goods 
and  wares  of  this  plaintiff  were  injured  and  destro^^ed,  and 
the  plaintiff  otherwise  greatly  injured  and  damaged. 

VI.     That  there  was  thereby  then  and  there  destroyed 
and  injured  goods  and  wares  of  the  plaintiff  to  the  amount 

and  of  the  value  of dollars,  and  that  the  plaintiff  was 

also  deprived  of  the  use  of  said  premises  leased  by  him  as 

aforesaid  for  the  space  of  three  weeks,  to  his  damage 

dollars,  and  that  by  reason  of  the  destruction  of  said  prem- 
ises the  employees  of  said  plaintiff  were  compelled  to  and 
did  lie  idle  for  the  space  of  three  weeks,  until  said  premises 
were  repaired  and  again  rendered  fit  for  occupation  by  the 
plaintiff,  to  his  damage dollars,  making  in  all  the  sum 


Chapter  LXXXII.]  1311  [Form  1775. 

of dollars  loss  and  damage  siifTered  and  sustained  by 

reason  of  the  fall  of  such  floor  as  aforesaid. 

WHEREFORE  the  plaintiff  prays  judgment  against  said 

defendants  for  said  sum  of dollars  and  the  costs  of 

this  action. 

1775.  Complaint  by  owner  of  livestock  shipped  in  an- 
other's name  against  commission  merchant,  for 
proceeds  of  sale  (sustained  in  Potter  v.  Van 
Norman,  73  Wis.  339;  41  N.  W.  524). 

The  plaintiff,  for  cause  of  action  against  the  defendant, 
says: 

I.  That  prior  to ,  19. .,  the  plaintiff  and  oneX. . . . 

Y. . . .  were  the  owners  of,  and  in  possession  of  a  lot  of  live 

hogs,  at in  the  state  of ,  of  the  value  of  about 

dollars. 

II.  That  a  few  days  prior  to  said ,  19 . .,  this  plain- 
tiff delivered  the  said  hogs  to  the Railway  Company, 

at  said   ,  and  by  verbal  arrangement  and  agreement 

between  him  and  said  X....  Y....,  consigned  the  same 
in  the  name  of  this  plaintiff  as  consignor,  and  to  be  trans- 
ported to  and  delivered  by  said Railway  Company  to 

defendant,  a  commission  merchant  at in  the  state  of 

to  be  sold  by  him  for  this  plaintiff,  and  to  account 

to  him  for  the  net  proceeds  or  value  thereof. 

III.  That  after  said  property  had  been  so  shipped  and 
consigned  by  this  plaintiff,  as  aforesaid,  and  in  his  name,  and 

as  the  same  was  about  to  be  started  to ,  the  plaintiff 

and  one  G . . . .  H . . . .  entered  into  a  verbal  agreement, 
whereby  the  plaintiff  was  to  sell  to  said  G . . . .  H . . . .  the 
said  property,  on  the  payment  to  him  of  the  cost  thereof, 

to-wit, dollars,  and dollars  more,  the  whole  to 

be  paid  to  plaintiff  from  the  proceeds  of  such  stock  as  soon 
as  sold,  and  that  this  plaintiff  was  to  be  and  remain  the  full 
and  absolute  owner  of  such  property,  and  the  title  and  right 
of  possession  thereof  were  to  remain  in  him  till  he  was  so 
paid  the  said  sum  therefor,  and  that  said  property  should 

go  forward  to in  the  name  of  this  plaintiff  as  consignor 

as  already  consigned,  and  that  said  G. . . .  H.  . . .  would  be 
entitled  to  receive  from  the  proceeds  thereof  only  the  excess 
of  its  actual  cost  and dollars  aforesaid,  and  that  no 


JJ'orm  1775.]  1312  [Chapter  LXXXII. 

part  of  said  sum  has  ever  been  paid  plaintiff  for  said  stock. 

IV.  That  after  such  agreement  was  so  made  between 
plaintiff  and  said  G. . . .  H. . .  .,  as  aforesaid,  the  said  G. . . . 
H,...,  without  the  knowledge,  consent  or  authority  of 
plaintiff,  or  plaintifY  and  said  X.  . . .  Y.  .  .  .,  and  in  their 
absence,  procured  and  induced  a  clerk  of  the  agent  of  said 

railway  company  at  said ,  to  so  change  the  shipment 

thereof  that  the  property  would  go  forward  in  the  name  of 
said  G.  . .  .  H. . . .  as  consignor;  and  said  clerk  thereupon  so 
changed  the  name  of  the  consignor  from  that  of  plaintiff  to 
that  of  said  G. . . .  H .  .  .  .,  and  the  said  lot  of  hogs  was  there- 
upon forwarded  to  said  defendant  in  the  name  of  said  G. . , . 
H .  . . .  as  consignor,  as  aforesaid,  but  this  plaintiff  was,  in 
fact,  the  real  owner  thereof,  and  entitled  to  the  proceeds  of 
the  same,  as  aforesaid. 

V.  That  said  defendant  duly  received  said  lot  of  hogs, 
being  one  car  load,  and  conveyed  and  delivered  to  him  in 

car  No of  said Railway  Company,  about 

19. .,  and  on  or  about  the  same  date  sold  the  same  and  re- 
ceived therefor  the  sum  of dollars,  above  all  expenses 

of  sale  and  transportation. 

VI.  That  said  defendant,  prior  to  the  receipt  of,  or  sale  of 
said  hogs,  had  due  and  full  notice  of  the  plaintiff's  ownership 
of,  and  rights  in  and  to  the  proceeds  or  value  thereof,  as 
aforesaid,  and  plaintiff  duly  demanded  of  him  such  value 
before  the  receipt  or  sale  thereof  by  defendant,  but  notwith- 
standing this,  said  defendant  has  unlawfully,  and  without 
plaintiff's  or  plaintiff's  and  said  X....  Y....'s  consent, 
converted  to  his  own  use  the  aforesaid  value  of  said  hogs, 
to-wit,  the  sum  of dollars,  and  refused  and  still  re- 
fuses to  pay  or  account  to  plaintiff,  or  plaintiff  and  said 
X .  . .  .  Y . . . .  therefor,  though  due  demand  has  been  made 
on  him  by  plaintiff  so  to  do. 

VII.  That  plaintiff  is  informed  and  believes  that  said 
defendant  claims  that  said  G ....  H ... .  was  indebted  to  him 
in  open  account,  at  and  prior  to  the  shipment  of  said  hogs  or 
the  receipt  thereof  by  him,  in  a  sum  equal  to  or  greater  than 
their  value,  and  that  he  has  passed  to  the  credit  of  said 
G. . .  .  H. . . .  the  value  of  said  hogs,  and  for  this  reason 
refuses  to  pay  plaintiff  therefor,  but  plaintiff  says  that  such 
indebtedness,  if  any  exist,  from  said  G.  . .  .  H. . .  .  to  defend- 
ant, was  not  incurred  in  any  way  by  reason  of  or  upon  the 


Chapter  LXXXIL]  1313  [Form  1776. 

strength  of  the  shipment  of  said  stock  having  been  changed, 
as  aforesaid,  from  the  names  of  this  plaintiff  as  consignor  to 
that  of  said  G. . . .  H. . . .,  and  defendant  has  suffered  no 
damage  nor  incurred  any  risk  in  any  way  in  consequence 
thereof,  but  on  the  contrary,  passed  to  the  credit  of  said 
G. . . .  H. . . .,  if  he  has  done  so  at  all,  the  proceeds  of  such 
stock  after  full  notice  of  plaintiffs  rights  in  and  to  the  said 
proceeds. 

VIII.  That  prior  to  the  commencement  of  this  suit,  and 
in  pursuance  of  the  original  agreement  between  said  X . . . . 
Y . . . .  and  this  plaintiff,  whereby  the  said  hogs  were  shipped 
in  the  name  of  plaintiff,  the  said  X . . . .  Y . . . .  has  duly  as- 
signed in  writing  to  this  plaintiff  all  his  interest  in  and  to  the 
said  hogs,  and  all  his  interest  in  or  claim  against  said  defend- 
ant for  the  value  of  said  property,  or  damages  for  its  conver- 
sion, as  aforesaid,  and  plaintiff  is  the  full  owner  of  all  such 
claims  and  demands  against  said  defendant. 

WHEREFORE  plaintiff  asks  judgment  against  said  de- 
fendant for  said  sum  of dollars,  with  interest  from 

,  19 . . ,  and  costs  of  suit. 

1776.  Complaint  for  personal  injuries  from  defendant's 
negligence,  and  to  set  aside  release  obtained  by 
fraud  (sustained  in  Whetstone  v.  Beloit  Straw 
Board  Co.,  76  Wis.  613;  45  N.  W.  535). 

I.  [Set  forth  cause  of  action  for  negligent  injury  as  in  forms 
in  Chapter  LIX,  supra,   and  continue  as  follows:] 

II.  That  on  or  about  the  ....  day  of ,  19.  .,  the 

defendant  induced  the  plaintiff  to  sign  and  deliver  an  agree- 
ment of  settlement  and  release  for  his  said  injuries,  in  words 
and  figures  as  follows,  to-wit  [set  out  copy  of  agreement,  or 
allege  its  substance]. 

III.  That  when  the  plaintiff  signed  said  agreement  he  was 
physically  very  weak  and  was  not  in  possession  of  his  senses 
by  reason  of  his  aforesaid  injuries,  and  did  not  know  or 
realize  what  he  was  doing,  or  the  effect  of  said  agreement  or 
any  of  the  provisions  thereof,  and  that  his  said  condition  was 
known  to  the  defendant,  but  that  the  defendant,  taking 
advantage  of  the  plaintiff's  said  condition,  fraudulently 
procured  the  plaintiff's  signature  to  the  said  instrument, 
notwithstanding  he  well  knew  that  the  plaintiff  did  not  and 

83 


Form  1777.]  1314  [Chapter  LXXXII. 

could  not  comprehend  what  he  was  doing,  or  the  nature  of 
said  agreement. 

IV.  That  the   defendant  has   paid   to   plaintiff    

dollars  upon  said  agreement,  and  that  the  plaintiff  has  given 

receipts  for  the  same  bearing  dates , , 

and ,  19..' 

V.  That  when  the  plaintiff  recovered  so  as  to  be  able  to 
give  any  thought  to  a  business  transaction,  on  being  informed 
of  the  above  agreement,  he  supposed  it  was  fmal  and  binding 
and  that  he  had  no  remedy;  that  he  sent  for  an  attorney  as 
soon  as  his  physical  and  m.ental  condition  made  it  proper  for 
him  to  do  business,  and  that  on  being  informed  said  instru- 
ment was  void,  he  refused  to  receive  any  further  payment. 

VI.  That  on  the  ....  day  of ,  19.  .,  the  plaintiff 

tendered  the  defendant dollars  for  all  payments  made 

to  him  by  the  defendant,  with  interest,  and  notified  the  de- 
fendant that  the  contract  was  rescinded;  that  the  defendant 
refused  to  receive  the  money,  and  that  the  plaintiff  now 
brings  the  said  money  into  court. 

VII.  That  the  plaintiff  has  suffered  damages  by  reason  of 
said  injuries,  in  the  sum  of dollars. 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
said  contract  in  this  complaint  mentioned  be  delivered  up  by 
said  defendant  and  be  declared  null  and  void,  and  that  he 
recover  judgment  against  the  said  defendant  for  the  sum  of 

dollars,  together  with  his  costs  and  disbursements  in 

this  action. 


1777.  Complaint  for  conspiracy  by  several,  to  procure  an 
unlawful  abortion  upon  the  plaintiff,  and  the 
accomplishment  thereof  (sustained  in  Miller  v. 
Bayer,  94  Wis.  123;  68  N.  W.  869). 

Plaintiff  herein,  complaining  of  the  above  named  defend- 
ants, respectfully  alleges  and  states  to  this  court: 

I.  That  plaintiff  is  of  the  age  of  twenty-one  years,  that 

the  date  of  her  birth  was ,  19. .,  and  that  she  has  never 

been  married. 

II.  That  for  more  than  two  years  prior  to ,  19. ., 

she  was  employed  as  a  domestic  at  the  house  of  C . . . .  D . . . . 
and  E . . . .  D . . . . ,  in  the  city  of and  state  of , 


Chapter  LXXXII.]  1315  [Form  1777. 

and  has  continuously  resided  in  the  family  of  said  defendants 
during  said  period  as  domestic  as  aforesaid. 

III.  That  in ,  19. .,  on  or  about  the  middle  of  said 

month,  she  was  assaulted  at  the  said  residence  of  said  de- 
fendants G . . . .  D . . . .  and  E . . . .  D . . . . ,  and  while  a  ser- 
vant as  aforesaid  in  the  family  of  said  defendants,  by  H . . . , 
D. . . .,  a  son  of  said  defendants,  and  raped  and  ravished  by 
force  and  against  her  will.  That  thereafter  and  on  several 
occasions  plaintiff  was  raped  and  ravished  by  said  H . . . . 

D . . . .,  at  the  residence  of  said  D . . .  .'s  in  said  city  of , 

That  by  reason  of  said  acts  of  sexual  intercourse  so 

accomplished  as  aforesaid,  plaintiff  in  the  month  of , 

19..,  became  and  was  pregnant  with  child  by  the  said 
H . . . .  D . . . .  Plaintiff  avers  that  said  H . . .  .  D  . , . .  was 
during  the  times  herein  alleged  residing  in  the  same  house 
with  his  said  parents,  the  said  C . . . .  and  E . . . .  D . . . . ; 
that  plaintiff  was  on  and  prior  to  said  assault  a  woman  of 
chaste  character. 

IV.  Plaintiff  ajleges  that  the  said  defendants,  the  said 
D . . . .  's,  C . . . .  D . . . .  and  E . . . .  D  . . . . ,  became  and  were 
cognizant  of  the  fact  of  plaintiff's  said  pregnancy,  as  plain- 
tiff is  informed  and  believes,  some  time  in   ,  19. . ; 

and  that  said  H .  . .  .   D . . . .  knew  of  plaintiff's  pregnancy 

,  19 . .    Plaintiff  avers  that  by  compulsion,  and  duress 

and  threats  of  said  H. . . .  D. . . .,  plaintiff  was  compelled 
and  did  submit  to  the  taking  of  medicine  furnished  by  the 
defendant  G. . . .  H, . . .  [then  and  there  being  a  practicing 

physician  in  the  city  of   ]  to  produce  a  miscarriage 

on  plaintiff.  Plaintiff  alleges  that  she  continued  as  a  domes- 
tic as  aforesaid  in  the  family  of  said  D. . .  .'s  until  the  .... 

day  of ,  19. .    That  at  said  time,  and  for  some  time 

theretofore,  the  said  G . . . .  D . . . .  and  E . . . .  D . . . .  had 
full  knowledge  of  the  said  fact  of  plaintiff's  said  pregnancy, 
and  that  their  son  H .  . . .  D .  . . .  was  the  cause  thereof,  and 
to  prevent  scandal  and  to  endeavor  to  save  the  reputation 
of  their  said  son,  entered  into  a  conspiracy  with  the  said 
G. . . .  H .  .  . .  and  their  said  son  to  cause  a  criminal  operation 
to  be  performed  upon  the  body  of  plaintiff,  and  to  have  the 
said  G . . . .  H . . . .  perform  an  abortion  upon  the  body  of  the 
said  plaintiff.  That  pursuant  to  said  conspiracy,  plaintiff 
was  removed  to  the  house  of  one  L. ...  M ....  in  said  city  of 
on  the  ....  day  of ,  19 . . ,  and  on  the  .... 


Form  1778.]  1316  [Chapter  LXXXII. 

day  of  19..,  in  said  city  of  ,   said 

criminal  operation  was  performed  on  the  body  of  this  plain- 
tiff by  the  said  G. . .  .  H. . . .  That  this  plaintiff  was  then 
quick  with  child,  which  fact  was  well  known  to  each  and  all 
defendants  prior  to  the  performing  of  said  abortion  as  afore- 
said. That  by  reason  of  said  criminal  operation,  plaintiff 
became  and  was  sick  nearly  to  death  and  became  and  was 
as  she  beheves,  permanently  injured.  That  the  health  of 
plaintiff  theretofore  good  has  since  been  very  poor.  That 
by  reason  of  said  operation,  she  was  sick  and  ill  at  said  house 
of  said  L. . . .  M . . . .  for  two  and  one-half  weeks,  and  there- 
after was  removed  to  the  ....  hospital  in  said  city  of , 

and  there  attended  by  the  physicians  and  sisters  in  said 
hospital,  and  ill  and  most  of  the  time  confined  to  her  bed 

at  said  hospital,  from  the  ....  day  of ,  19. .,  until 

,  19. .    She  avers  that  by  the  collusion  of  all  of  said 

defendants  plaintiff  was  secretly  kept  at  the  house  of  said 
L . . . .    M . . . . ,   and  all  knowledge  thereof  kept  from  the 

parents  of  plaintiff.     That  on  the  ....  day  of ,  19. ., 

by  the  assistance  of  the  police  force  of  said  city  of , 

the  whereabouts  of  plaintiff  were  discovered  by  the  parents 
of  plaintiff,  and  on  so  finding  her  as  aforesaid,  said  parents 
caused  the  plaintiff  to  be  removed  to  said  hospital  for  treat- 
ment for  the  illness  caused  by  said  abortion. 

V.  That  by  reason  of  the  facts  the  health  of  the  plaintiff 
has  been  permanently  injured,  and  she  has  suffered  great 
mental  anguish  and  bodily  pain,  and  in  her  reputation  and 

good  name,  and  been  greatly  damaged,  in  the  sum  of 

dollars,  and  specially  damaged  in  the  expenses  of  said  illness 

and  care  at  said  hospital  in  the  sum  of  at  least dollars, 

and  in  the  loss  of  her  time  and  services  in  the  sum  of  at  least 
dollars. 

WHEREFORE  plaintiff  prays  judgment  against  the  de- 
fendants, and  each  of  them,  for  the  sum  of dollars, 

and  her  costs  and  disbursements  herein. 

1778.  Complaint  under  Wis.  Stats.  1913  sec.  1691,  to  re- 
cover treble  the  amount  of  usurious  interest  paid 
upon  a  loan  of  money  (sustained  in  Matthieson 
V.  Schomberg,  94  Wis.  1;  68  N.  W.  416). 

I.     That  on  or  about  the  ....  day  of 19. .,  the 


Chapter  LXXXIL]  1317  [Form  1778. 

said  defendant  did,  at  the  instance  and  request  of  these 
plaintiffs,  loan  to  them  the  sum  of dollars. 

II.  That  the  said  defendant  did,  as  a  condition  of  the 
making  of  said  loan  to  these  plaintiffs,  demand  of  them  that 
they  should  not  only  repay  to  the  said  defendant  the  said 

sum  of dollars,  but  also,  in  addition  thereto,  a  large, 

exorbitant  and  usurious  sum  of  money,  to-wit,  the  sum  of 

dollars,  for  the  loan  of  the  sum  of   dollars 

loaned  to  these  plaintiffs  for  the  time  the  same  should  be 
retained  by  them,  as  hereinafter  alleged  and  set  forth. 

III.  That  these  plaintiffs  did  accede  to  the  demands  of 

the  defendant,  and  did,  on  or  about  the  ....  day  of , 

19. .,  make,  execute  and  deliver  to  the  said  defendant,  their 
two  certain  promissory  notes  in  writing,  of  which  the  follow- 
ing are  true  copies,  to-wit  [set  forth  copies  of  notes]. 

IV.  That  no  other  or  greater  consideration  has  ever  been 
had  or  received  by  these  plaintiffs  for  said  notes  than  the  said 
sum  of   dollars. 

V.  That  these  plaintiffs  did  have  and  retain  the  full  sum 
of  two  thousand  five  hundred  dollars,  loaned  to  them  by  the 
said  defendant,  from  the  date  of  said  note  until  the  28th  day 
of  November,  1892,  at  which  time  they  paid  to  the  said  de- 
fendant the  sum  of  five  hundred  dollars  on  account  of  said 
loan. 

VI.  That  these  plaintiffs  did  then  have  and  retain  of  the 
said  sum  of  money  loaned  to  them,  the  sum  of  two  thousand 
dollars  from  the  28th  day  of  November,  1892,  until  the  10th 
day  of  January,  1893,  on  which  last  mentioned  day  they  paid 
to  the  said  defendant  the  sum  of  five  hundred  dollars  on 
account  of  said  loan. 

VII.  That  these  plaintiffs  then  had  and  retained  of  the 
amount  loaned  to  them,  the  sum  of  one  thousand  five  hun- 
dred dollars  from  the  10th  day  of  January,  1893,  until  the 
16th  day  of  January,  1893,  on  which  last  mentioned  day  they 
paid  to  the  said  defendant  the  sum  of  -five  hundred  dollars 
on  account  of  said  loan. 

VIII.  That  these  plaintiffs  then  had  and  retained  of  the 
amount  of  said  loan  the  sum  of  one  thousand  dollars  from 
the  16th  day  of  January,  1893,  until  the  25th  day  of  January, 
1893,  at  which  last  mentioned  day  they  paid  to  the  said 
defendant  the  sum  of  one  thousand  dollars  on  account  of 
said  loan. 


Form  1778.]  1318  [Chapter  LXXXII. 

IX.  That  all  of  said  sums  of  money  paid  by  these  plain- 
tiffs to  the  said  defendant  were  paid  to  the  said  defendant  at 
his  own  instance  and  request,  and  that  the  defendant  did 
accept  and  receive  the  same. 

X.  That  on  or  about  the  25th  day  of  January,  1893,  the 
said  notes  were  surrendered  to  these  plaintiffs  by  the  said 
defendant,  and  these  plaintiffs  did  then  make,  execute  and 
deliver  to  the  said  defendant  their  joint  promissory  note  in 
writing  to  secure  the  payment,  to  the  said  defendant,  of  the 
balance  remaining  unpaid  of  the  amount  of  said  first  men- 
tioned notes,  viz:   dollars,  of  which  said  note  the 

following  is  a  true  copy,  to-wit  [insert  copy  of  note]. 

XI.  That  no  other  consideration  was  ever  had  or  received 
by  these  plaintiffs  for  the  said  last  mentioned  note  than  as 
above  mentioned  and  set  forth. 

XI I.  That  the  said  defendant  did  receive  and  accept  the 
said  last  mentioned  note  in  the  place  and  stead  of  said  first 
mentioned  notes,  and  did  thereafter,  and  before  said  note 

became  due,  indorse  and  transfer  the  said  note  for 

dollars  to  the Bank  of 

XIII.  That  on  or  about  the  ....  day  of ,  19. .,  the 

said Bank  made  a  voluntary  assignment  of  its  prop- 
erty, effects  and  credits,  including  the  said  last  mentioned 
note,  to  C . . . .  D . . .  . ,  for  the  benefit  of  its  creditors. 

XIV.  That  the  said  C. . . .  D. . . .,  as  such  assignee  of 
said  bank,  did  make  demand  on  these  plaintiffs  for  the 
payment  of  said  note. 

XV.  That  on  or  about  the  ....  day  of ,  19 .  . ,  these 

plaintiffs  did  pay  to  C .  .  . .  D . . . .  as  assignee  of  said  bank, 

the  sum  of dollars  on  account  of  said  note,  and  did 

fully  satisfy  said  note,  and  said  note  was  cancelled  and  sur- 
rendered and  delivered  to  these  plaintiffs. 

XVI.  That  the  amount  of  interest  upon  the  amount  of 
said  loan  of  two  thousand  five  hundred  dollars,  and  the 
several  parts  thereof,  for  the  entire  time  the  same  and  the 
several  portions  thereof  respectively,  were  retained  by  these 
plaintiffs,  computed  at  the  rate  of  ten  dollars  upon  one  hun- 
dred dollars  for  one  year,  is  forty-nine  dollars  and  sixteen 
cents. 

XVII.  That  these  plaintiffs  have  paid  and  the  said  de- 
fendant has  received  for  said  loan  a  much  greater  sum  of 
money   than   interest   thereon    at  the  rate  of  ten  dollars 


Chapter  LXXXII.]  1319  [Form  1779. 

upon  one  hundred  dollars  for  one  yea  ,  to-wit,  the  sum  of 
one  thousand  dollars. 

XVIII.  That  these  plaintiffs  have  paid  and  the  defendant 
has  had  and  received  for  said  loan  of  money,  in  excess  of 
interest  at  the  rate  of  ten  dollars  upon  one  hundred  dollars 
for  one  year,  the  sum  of  nine  hundred  fifty  dollars  and 
eighty-three  cents. 

XIX.  That  one  year  has  not  elapsed  since  the  payment 
of  all  and  any  of  said  sums  of  money. 

WHEREFORE  these  plaintiffs  demand  judgment  against 
the  said  defendant  for  treble  the  amount  of  the  money  so 
paid  for  said  loan  in  excess  of  interest  at  the  rate  of  ten 
dollars  upon  one  hundred  dollars  for  one  year,  to-wit,  for 

the  sum  of dollars,  with  costs  and  disbursements  of 

this  action. 

1779.  Complaint  by  several  riparian  owners,  jointly,  to 
restrain  an  upper  owner  from  wrongfully  divert- 
ing water  from  plaintiffs'  lands  (sustained  in 
G.  R.  W.  P.  Co.  V.  Bensley,  75  Wis.  399;  44  N. 
W.  640). 

I.  That  each  of  these  plaintiffs  is  a  corporation  duly  or- 
ganized under  the  laws  of  this  state  each  having  its  ofTices 

and  principal  place  of  business  at   in  said   

county.  That  the  plaintiff  A....  B....  company  is  the 
owner  in  fee  of  the  following  described  premises,  rights  and 

privileges   in   said    county,   to-wit   [describe   lands]. 

That  all  of  said  lands  and  premises  are  upon  and  appurte- 
nant to  the river,  which  in  passing  down  stream  and 

over  the  same,  has  from  said  lands  on  said  section to 

the  south  line  of  said  lands  on  section  ....  a  fall  exceeding 
ten  feet.     That  said  river  at,  and  immediately   above    the 

railroad  bridge  on  said  lot  seven  of  section is  readily 

improved  by  dams,  thus  forming  valuable  water  powers. 
That  the  principal  and  almost  sole  value  of  said  lands  and 
premises  consists  in  their  opportunity  and  readiness  of  im- 
provement in  connection  with  said  rights  and  privileges,  for 
hydraulic  purposes. 

II.  That  this  plaintiff,  the  C .  . . .  D . . . .  company,  is  the 
owner  in  fee  of  the  following  described  real  estate,  privileges, 
and  easements,   situated,   lying  and   being  in  said    


Form  1779.]  1320  [Chapter  LXXXII. 

county,  to-wit  [describe  premises];  and  it  is  also  the  owner  of 
the  riparian  rights,  rights  of  flowage  and  right  of  way  along 
the river  up  stream  from  that  portion  on  said  frac- 
tional lot  eirht  to  the  south  line  of  the  right  of  way  of  the 
said .ailway,  and  is  the  owner  of  all  dams  and  im- 
provements for  hydraulic  purposes  upon,  or  connected  with 
said  premises,  and  has  good  right  and  lawful  authority 
perpetually  to  build,  keep  up  and  maintain  all  such  dams 
and  improvements.  That  the  said  premises  are  chiefly 
valuable  for  the  water  power  and  mills  connected  therewith, 

this  said  plaintiff,  the  C D . . . .  company  having  and 

owning  a  large  and  valuable  pulp  mill,  situated  and  being 
upon  said  fractional  lot  eight,  the  wheels  and  machinery 
of  which  are  propelled  by  the  waters  of  said  river.  That  said 
waters  of  said  river  are  turned  to  the  mill  of  this  plaintiff  by 
means  of,  and  said  water  power  is  formed  by,  a  system  of 
dams  extending  up  stream  from  said  mill,  and  westerly  across 
the  main  channel  of  said  river  to  near  the  foot  or  south  end 
of  what  is  commonly  known  as  "Nine  Acre  Island." 

III.  That  this  plaintiff,  the  E . .  .  .  F. . . .  company,  is  the 
owner  of  the  north  half  of  said  "Foundry  Island,"  on  the  said 
fractional  lot  eight,  of  section  . . . . ,  together  with  the  water 
rights  and  privileges  appurtenant  thereto.  That  it  has  upon 
said  premises  a  large  and  valuable  flouring  and  grist  mill,  the 
wheels  and  machinery  of  which  are  propelled  by  the  waters  of 

said river,  taken  from  the  pond  formed  by  the  said 

system  of  dams  of  the  said  C . . . .  D . . . .  company. 

IV.  That  hereto  annexed,  and  forming  a  part  of  this  com- 
plaint, is  a  plat  or  map  marked  "Exhibit  X",  showing  with 

substantial  accuracy,  the  course  and  direction  of  the 

river  as  it  is,  and  since  the  time  when  the  memory  of  man 
runneth  not  to  the  contrary,  hath  been  located  in  said  section 
....  in  township  ....  north,  of  range  ....  east.  That  said 
map  shows  with  substantial  accuracy  the  premises,  dams, 
channels,  islands,  and  their  names,  mills,  etc.,  in  question 
in  this  action,  as  also  the  relative  distances  and  direction  of 
currents  and  streams  of  water  as  indicated  by  arrows. 

V.  That  said river  is,  and  ever  has  been  a  naviga- 
ble stream. 

VI.  And  these  plaintiffs  further  allege  that  the  defendant 
is,  or  claims  to  be,  the  owner  of  a  large  pulp  mill  situated 
upon  the  west  side  of  said  river  upon  fractional  lot  four  of  said 


Chapter  LXXXIL]  1321  [Form  1779. 

section ,  at  a  point  further  down  stream  than  the  mills 

of  plaintiff  aforesaid,  and  that  a  few  rods  up  stream  from  the 
defendant's  said  pulp  mill  is  the  flouring  mill  of  the  .... 
milling  company.  That  as  is  indicated  and  shown  upon  said 
map  "Exhibit  X"  heretofore,  and  up  to  this  time,  the  water 
to  run  and  operate  the  defendant's  pulp  mill,  and  said  flour- 
ing mill,  has  for  many  years  been  obtained  by  confining  the 
water  running  into  the  slough  at  the  head,  and  on  the  wester- 
ly side  of  "Big  Island,"  and  causing  it  to  run  around  on  the 
west  side  of  "Hunter's  Island"  and  "Nine  Acre  Island," 
and  through  an  artificial  channel  a  distance  in  all  of  upwards- 
of  three  miles  to  said  mills.  That  to  keep  said  water  in  said 
slough,  and  cause  it  to  run  on  the  west  side  of  said  islands, 
the  defendant  and  her  grantors  have  for  many  years  built 
and  kept  up  and  maintained  a  dam  across  the  so-called 
"Lost  Channel"  at  the  head  of  said  "Hunter's  Island,"  a 
dam  from  the  foot  of  "Hunter's  Island"  to  "Nine  Acre 
Island,"  and  a  dam  from  the  foot  of  "Nine  Acre  Island"  to 
what  was  formerly  a  part  of  the  main  west  shore,  where  the 
artificial  channel  begins.  That  the  waters  of  said  river  flow- 
ing into  said  slough  at  the  head  of  Big  Island  would,  if  left 
unconfined,  return  again  to  the  main  channel  of  said  river 
at  the  foot  of  said  islands,  mainly  at  the  foot  of  said  Big 
Island,  through  said  lost  channel ;  and  would  mingle  with  and 
spread  out  over  the  waters  of  such  main  channel  above,  and 
before  passing  the  mills,  premises  and  mill-sites  of  said 
plaintiffs  on  said  fractional  lots  seven  and  eight  of  said  sec- 
tion ....  and  that  in  a  natural  state  of  the  said  stream, 
less  than  one-sixth  of  the  waters  therein  at  and  above  the 
head  of  said  Big  Island  would  and  did  originally  flow  into 
and  down  said  slough.  That  as  now  and  heretofore  confined 
the  main  part  of  said  waters  flowing  into  said  slough  are  not 
permitted  to  flow  back  again  into  the  main  channel  of  said 
river  until  they  have  passed  the  said  mills  and  sites  of  these 
plaintiffs.  And  plaintiffs  insist  and  allege  that  such  confine- 
ment and  changing  of  the  natural  flow  of  said  waters  is  and 
ever  has  been,  unreasonable  and  in  fraud  of  plaintiffs'  rights 
to  the  natural  flow  of  waters  of  said  river.  That  as  riparian 
owners  of  said  fractional  lots  six,  seven  and  eight  in  section 
. . . .,  these  plaintiffs  have  and  of  right  ought  to  have  the 
free,  natural  and  unobstructed  flow  of  the  waters  of  said 
river  upon  and  adjoining  their  premises. 


Form  1779.]  1322  [Chapter  LXXXII. 

VII.  And  plaintiffs  further  show  that  at  divers  times 
during  the  past  three  years  the  defendant  has  greatly  en- 
larged and  increased  in  width  and  depth  said  artificial 
channel  above  and  leading  to  her  said  mill;  that  she  has  dur- 
ing said  time,  blasted  out,  deepened  and  enlarged  much  of 
said  slough  from  Hunter's  Island  to  the  head  of  said  Big 
Island,  and  she  has  during  said  time  greatly  raised  and 
improved  the  said  dams  between  said  islands  for  the  sole 
purpose,  and  with  the  intent,  of  drawing  into  said  slough, 
and  diverting  from  the  main  channel  of  said  river,  and  hold- 
ing and  confining  therein  until  used  by  her  said  mill  and  said 
flouring  mill,  more  of  the  waters  of  sal  river  than  would,  or 
have  theretofore  flowed  into  and  down  said  slough.  That 
by  means  of  such  enlargements  and  changes,  the  defendant 
has  diverted  from  the  said  main  channel  far  more  of  the 
waters  of  said  river  than  theretofore  and  before  such  enlarge- 
ments and  changes  naturally  flowed  into  and  down  said 
stream;  and  by  such  diversion  has  and  does  greatly  diminish 
the  waters  flowing  to  the  premises  and  mills  of  these  plain- 
tiffs, to  their  great  and  irreparable  loss  and  damage.  That 
such  diversion  is  unreasonable,  unlawful,  and  in  fraud  of  the 
riparian  rights,  not  only  of  these  plaintiffs,  but  of  all  owners 
of  lands  upon  the  easterly  side  of  said  river  in  said  sections; 
and  it  has  been  a  serious  injury  to  the  navigation  of  said 
river.  That  by  reason  of  the  diversion  of  the  waters  of  said 
river  by  the  defendant  as  aforesaid,  the  small  portion  re- 
maining in  the  main  channel  and  spreading  out  over  the  same 
in  thin  quantities  before  reaching  the  mills  and  premises  of 
plaintiffs,  has  become  and  is  by  absorption  in  warm  weather, 
and  low  stages,  and  by  freezing  in  winter,  greatly  diminished 
in  quantity,  so  much  so  as  frequently  to  necessitate  the 
stoppage  of  the  mills  of  the  plaintiffs. 

VIII.  That  notwithstanding  the  premises,  the  defendant 
is  now  engaged  with  at  least  forty  men,  many  teams  and 
implements,  in  still  further  deepening  and  enlarging  said 
slough  and  channel  and  changing  the  location  of  said  dams 
abutting  upon  Hunter's  Island,  for  the  purpose  of  causing 
water  to  flow  out  of  the  main  channel  of  said  river  and 
do?wn  said  slough.  That  from  the  head,  or  north  end  of  said 
Hunter's  Island  to  the  south  end  thereof,  through  and  by 
way  of  said  Lost  Channel,  is  a  much  grea-ter  fall  and  wider 
channel  with  less  obstruction  than  by  the  slough,  or  channel 


Chapter  LXXXIL]  1323  [Form  1779. 

on  the  west  side  of  said  Island,  where  the  water  has  heretofore 
been  made  to  flow.  That  to  get  the  benefit  of  the  greater 
fall  down  said  Lost  Channel,  and  the  greater  force  and  suc- 
tion upon  the  stream  running  into  said  slough  at  the  head  of 
said  Big  Island,  the  defendant  is  now  engaged  in  building  a 
long  tight  dam  at  the  foot  of  said  Big  Island,  and  connecting 
it  with  a  small  island,  lying  south-easterly  of  the  foot  of  said 
Hunter's  Island,  and  also  another  dam  from  the  foot  of  said 
small  island  to  near  the  head  of  said  "Nine  Acre  Island;" 
intending  when  said  dams  are  complete  to  remove  the  dam 
heretofore  maintained  from  the  head  of  said  Hunter's 
Island  to  said  Big  Island,  thus  causing  the  waters  in  said 
slough  to  flow  mainly  down  said  Lost  Channel,  and  around 
the  foot  of  Hunter's  Island,  and  west  side  of  Nine  Acre  Island, 
and  to  the  mill  of  the  defendant.  That  by  thus  changing  her 
dams  she  secures  the  benefit  to  her  and  the  increased  suction 
upon  the  slough  above  of  the  two  channels  around  Hunter's 
Island.  That  she  has,  with  a  large  crew  of  men,  entered  upon 

the  lands  of  this  plaintiff,  the  A B company,  at  the 

head  of  said  Big  Island,  and  taken  possession  thereof,  and 
has  built  a  temporary  dam,  or  coffer  dam,  at  the  head  and 
across  the  mouth  of  said  slough,  and  is  engaged  with  men  and 
teams  digging  out,  deepening  and  enlarging  said  slough  at 
and  near  its  mouth,  and  from  there  to  the  head  of  said 
Hunter's  Island. 

IX.  That  the  entry  and  possession  of  the  defendant  upon 
and  of  the  lands  of  this  plaintiff,  is  wrongful  and  unlawful, 
and  if  not  restrained,  will,  as  plaintiffs  greatly  fear,  result  in 
violence  and  a  multiplicity  of  suits. 

X.  That  the  dams  being  erected  by  the  defendant  at  the 
foot  of  Big  Island  and  the  head  of  Nine  Acre  Island,  are 
intended  for  permanent  work,  and  are  not  for  a  temporary 
purpose. 

XI.  And  these  plaintiffs  further  show  that  the  further  di- 
version of  the  waters  of  said  river  by  the  defendant  by  means 
of  the  dams  and  enlargement  of  said  slough  as  aforesaid,  will 
be  an  unreasonable  and  unjust  diversion,  and  will  result  in 
great  and  irreparable  loss  and  damage  to  these  plaintiffs. 
That  if  the  defendant  is  permitted  to  deepen,  enlarge  and  dig 
out  said  slough  as  she  now  threatens  and  intends  to  do,  and 
in  fact  is  engaged  in  doing,  and  is  permitted  to  draw  the 
waters  of  said  slough  around  the  easterly  side  of  said  Hunter's 


Form  1779.]  1324  [Chapter  LXXXII. 

Island,  through  the  Lost  Channel,  she  will  compel  a  large 
proportion  of  the  waters  of  said  river,  to-wit,  upwards  of 
two-thirds,  to  flow  into  and  down  said  slough  to  her  mill,  and 
the  waters  in  the  main  channel  of  said  river,  and  running  to 
the  mills  and  premises  of  these  plaintiffs,  will  be  so  greatly 
diminished  in  quantity  as  to  be  entirely  insufTicient  and  in- 
adequate for  hydraulic  purposes,  and  it  will  be  utterly  im- 
possible for  plaintiffs  to  run  and  operate  their  said  mills 
during  a  considerable  portion  of  each  year. 

XII.  And  plaintiffs  further  show  that  their  said  water 
powers,  mills,  mill  sites  and  riparian  rights,  will  be  greatly 
injured  and  damaged  if  the  defendant  is  permitted  to  com- 
plete said  works  and  divert  the  water  as  aforesaid,  and  they 
will  suffer  great  and  irreparable  loss  and  damage  in  being 
thus  deprived  of  the  flow  of  said  stream.  That  they  have  no 
adequate  remedy  at  law,  and  therefore  pray  the  aid  and 
judgment  of  the  equity  powers  of  this  court: 

That  the  defendants  be  perpetually  enjoined  and  re- 
strained from  in  any  manner  or  by  any  means  turning  or 

diverting  the  waters  of  said    river  from  the  main 

channel  thereof  at  the  head  of  Big  Island  into  said  slough  on 
the  westerly  side  of  said  Island; 

From  digging  out,  deepening  or  enlarging  said  slough  and 
channel  in  any  manner; 

From  causing  the  waters  in  said  slough  at  and  above  said 
Hunter's  Island  to  flow  on  the  easterly  side  thereof  through 
or  down  said  Lost  Channel,  to  her  mill. 

That  she  be  enjoined  and  restrained  from  in  any  manner 
interfering  with  the  natural  flow  of  the  waters  of  said  river 
upon  or  adjoining  the  premises  of  the  said  plaintiffs,  and  that 
the  plaintiffs  have  such  other  and  further  relief  as  may  be 
just,  and  that  they  recover  costs. 

Further,  plaintiffs  pray  a  temporary  injunction  pending 
the  trial  of  this  action  as  above,  and  restraining  the  defendant 
from  trespassing  upon  said  plaintiff's  lands  at  the  head  of 
said  Big  Island. 

0....    P.... 
[Verification.]  Plaintiffs'  Attorney. 


Chapter  LXXXIL]  1325  [Form  1780. 

1780.  Complaint  in  equity  for  a  continuing  trespass 
caused  by  building  and  maintaining  a  stone 
foundation  wall  on  plaintiff's  lot  (sustained  in 
Rahn  v.  M.  E.  R.  &  L.  Co.,  103  Wis.  467;  79  N. 
W.  747). 

The  plaintiiT  above  named  complains  of  the  defendants 
above  named,  and     for  cause  of  action  alleges: 

I.  That  the  defendant,  the  L. . . .  M. . , .  street  rai.vvay 
company  is  a  street  railway  corporation  organized  and  exist- 
ing under  the  laws  of  this  state,  and  prior  to  the  year  19 . . 
was  and  still  is  the  owner  of  and  engaged  in  operating  a  street 
railway  in  the  city  and  county  of ,  in  the  state  of 

II.  That  the  plaintiff  herein  is  the  owner  of  and  has  an 
estate  in  fee  simple  in  and  to  the  following  described  land 

situate  in  the  city  and  county  of and  state  of , 

to-wit  [describe  lots],  which  said  lots  have  thereon  two  two- 
story  frame  buildings  and  one  one-story  frame  building, 
which  said  buildings  are  on  the  northerly  line  of  said  lots 
and  cover  the  same  nearly  or  quite  to  the  north  line  thereof, 
and  that  the  plaintiff  is  now  in  possession  of  the  said  lands 
and  buildings,  and  that  she  and  her  immediate  grantors 
have  been  in  possession  thereof  for  twenty-eight  years  last 
past. 

III.  That  in  the  year  19. .  the  said  defendant  was,  and 
still  is,  the  owner  of  lots  two  and  three,  and  four,  etc.,  in 
said  block  . . . . ,  the  said  lots  numbered  five  and  ....  belong- 
ing to  the  said  L.  . . .  M. . . .  street  railway  company  ad- 
joining the  premises  of  the  plaintifT  on  the  northerly  line 
thereof. 

IV.  That  in  the  said  year  19 . .  the  said  defendant  erected 
upon  its  land  a  large  brick  building  about  forty  feet  in  height, 
and  covering  all  its  lands,  which  said  building  was  to  be  used 
as  a  repair  shop  for  the  repairing  of  its  cars,  machinery  and 
appliances  used  in  operating  its  lines  of  street  railway,  and 
in  erecting  said  building,  and  for  the  purpose  of  laying  a 
foundation  wall  therefor,  excavated  the  ground  along  the 
south  line  of  its  said  lots  numbered  five  and  ....  adjoining 
the  premises  of  the  plaintiff  to  the  depth  of  several  feet,  and 
below  the  foundation  walls  of  the  buildings  of  the  plaintiff 
erected  and  then  standing  upon  her  said  lots  . . . .,  ....  etc., 
and  excavated  beneath  and  undermined  the  foundation  wall 


Form  1780.]  1326  [Chapter  LXXXII. 

sustaining  the  said  buildings  of  the  plaintiff,  and  dug  into 
and  removed  the  soil  from  the  premises  of  said  plaintiff, 
without  the  plaintiff's  consent,  and  without  her  consent  and 
against  her  protest,  built,  erected  and  caused  to  be  built  and 
erected  upon  its  said  lands  and  upon  the  lands  of  the  said 
plaintiff  a  heavy  foundation  wall  of  stone,  three  feet  or  more 
in  thickness,  which  said  foundation  wall  and  the  footing 
stones  of  the  same  extend  into  and  upon  the  premises  of  said 
plaintiff  and  extend  underneath  the  foundation  wall  sustain- 
ing the  said  buildings  of  the  said  plaintiff  for  a  distance, 
varying  from  five  to  nine  inches  and  upwards  along  the  whole 
northerly  line  of  said  lots  numbered  . . . . ,  . . . . ,  etc. 

V.  That  by  reason  of  the  undermining  of  the  foundation 
wall  of  the  buildings  of  the  said  plaintiff  and  the  removal  of 
the  soil  thereof,  as  aforesaid,  the  plaintiff's  buildings  sank 
down  and  settled,  throwing  the  said  buildings  out  of  plumb, 
and  caused  the  same  to  pitch  and  lean  to  the  north,  cracking 
and  breaking  the  plastering  in  the  said  buildings,  causing  the 
cellar  walls  of  said  buildings  to  cave  in  and  the  floors  of  said 
buildings  to  sink  down,  and  so  wrenching  and  straining  the 
said  buildings  as  to  prevent  the  doors  thereof  from  opening 
and  shutting  until  the  same  were  rehung  and  changed,  to  the 
great  damage  of  the  said  plaintiff  and  her  said  buildings,  to- 
wit,  in  the  sum  of dollars. 

VI.  The  plaintiff  further  alleges  that  the  said  defendant, 
the  L . . . .  M . . . .  street  railway  company,  claims  the  right 
to  keep  and  maintain,  and  does  still  keep  and  maintain,  the 
said  foundation  wall  of  its  said  building  upon  the  premises  of 
the  said  plaintiff,  and  refuses  to  take  down  and  remove 
the  same  or  any  part  thereof  therefrom. 

VII.  That  the  said  described  lands  of  the  said  plaintiff  are 
of  great  value,  are  situate  in  the  business  district,  and  are 
quite  suitable  for  business  purposes,  and  that  it  was  and  is 
the  intention  of  the  plaintiff,  as  soon  as  she  is  able  to  do  so,  to 
erect  thereon  a  brick  building,  covering  said  lots,  for  business 
purposes,  but  that  she  is  and  will  be  prevented  from  occupy- 
ing and  using  the  whole  of  said  land  for  such  purpose  by 
reason  of  the  intrusion  of  the  foundation  wall  of  the  defend- 
ant's said  building  thereon,  and  that  the  value  of  her  said 
lands  is  greatly  diminished,  and  the  same  made  unsalable, 
and  the  plaintiff  greatly  damaged  in  consequence,  to-wit, 
in  the  sum  of dollars. 


Chapter  LXXXIL]  1327  [Form  1780. 

VIII.  That  the  said  lot  ....  of  said  plaintiff  has  a  front- 
age of  ....   feet  on   avenue,  and  that  said  lot   .... 

which  adjoins  said  lot  ....  on  the  west,  has  a  frontage  of  ... . 

feet  on street,  in  said  city  of ,  making  a  strip 

of  land  ....  feet  in  width  extending  through  the  center  of 

said  block  from avenue  to street,  and  that  a 

frontage  of  ....  feet  upon  a  business  street  is  the  smallest 
frontage  salable  or  available  for  business  purposes,  and  that 
any  reduction  of  the  frontage  of  a  lot  below  ....  feet  largely 
diminishes  and  destroys  the  value  thereof,  and  that  the  said 
foundation  wall  of  the  said  defendant's  said  building  extend- 
ing into  and  upon  her  lands  as  aforesaid  and  underneath  the 
foundation  walls  of  her  buildings  erected  thereon  deprive 
her  of  the  full  use,  occupation  and  enjoyment  of  said  lot, 
and  will  prevent  her  and  her  grantees  and  assigns  from  using 
and  occupying  the  same  for  the  purpose  of  building  and  erect- 
ing a  foundation  wall  to  sustain  the  buildmgs  now  or  here- 
after erected  thereon. 

IX.  The  plaintifT  further  alleges  that  the  points  and 
places  where  the  said  foundation  wall  of  the  defendant's 
building  extends  into  and  upon  the  lands  of  the  plaintiff 
as  aforesaid  is  below  the  surface  of  the  earth  and  below  the 
foundation  wall  of  her  buildings  standing  thereon  and  said 
foundation  wall  of  defendant's  building  cannot  be  cut  off 
and  removed  from  the  plaintiff's  land  from  the  plaintiff's 
premises  without  taking  away  and  removing  the  soil,  and 
tearing  down  and  removing  the  foundation  wall  of  her  build- 
ings erected  and  standing  upon  her  lands,  and  that  the 
removal  and  cutting  off  of  the  said  foundation  wall  of  the 
defendant's  building  extending  from  the  plaintiff's  premises 
would  entail  upon  the  plaintiff  great  cost,  damage  and  ex- 
pense. 

WHEREFORE  the  plaintiff  demands  judgment: 

1.  That  she  may  be  adjudged  and  decreed  to  be  the  owner 
of  said  lots  ....  and  ....  of  block in subdivi- 
sion in  the  ....  ward  of  the  city  of in  fee  simple,  and 

as  such  owner  entitled  to  the  free  and  full  use  and  occupation 
thereof  without  let,  hinderance  or  obstruction  by  the  said 
defendants,  or  either  of  them. 

2.  That  the  foundation  wall  of  the  defendant's  building, 
so  far  as  it  extends  into  and  upon  the  lands  of  the  said  plaintifT 
and  underneath  the  foundation  walls  of  the  buildings  stand- 


Form  1781.]  1328  [Chapter  LXXXII. 

ing  upon  the  plaintiff's  lands,  be  adjudged  and  decreed  to  be 
an  unlawful  encumbrance  and  obstruction  thereon,  and  that 
the  said  defendant  be  adjudged  and  directed  within  a  certain 
time  to  be  in  said  judgment  ascertained  and  limited  to  re- 
move the  same  therefrom  without  removing  or  digging  up 
the  soil  of  the  said  plaintiff  or  trespassing  upon  her  premises 
for  the  purpose  of  so  doing. 

3.  That  the  said  defendant  be  decreed  and  directed  by 
said  judgment  to  replace  upon  the  premises  of  said  plaintiff 
the  soil  and  other  material  unlawfully  removed  therefrom 
in  such  manner  as  to  sustain  the  plaintiff's  building  and  the 
foundation  walls  thereof. 

4.  That  the  plaintiff  be  further  adjudged  and  decreed  to 
have  and  recover  from  the  said  defendants  such  damages  as 
she  may  be  found  to  have  suffered  by  reason  of  the  premises 
together  with  the  costs  and  disbursements  of  this  action, 
and  that  she  have  such  further  and  other  relief  in  the  premises 
as  to  the  court  may  seem  just  and  equitable. 

0....   P.... 
[Verification,]  Plaintiff's  Attorney. 

1781.  Complaint  against  surety  company  upon  an  un- 
dertaking given  to  release  garnishment,  and  pay 
judgment  under  Wis.  Stats.  1913  sec.  2771  (from 
complaint  in  Wilkinson  v.  U.  S.  F.  &  G.  Co.  119 
Wis.  226;  96  N.  W.  560). 

I.  That  the  defendant  was,  at  the  dates  and  times  herein- 
after mentioned,  and  now  is,  a  corporation,  of ,  or- 
ganized pursuant  to  the  laws  of  the  state  of   and 

authorized  to  do  business  as  a  surety  company  under  the 
laws  of  the  state  of 

II.  That  on  the day  of ,  19. .,  the  plaintiff, 

A . . . .  B . . . .  commenced  an  action  against  one  E . . . .  F . . . . 

in  the court  of  the  county  of in  the  state  of 

,  and  one  G. . . .  H.  . . .  was  garnished  in  said  action, 

an  affidavit  and  summons  in  garnishment  in  said  action  being 

served  upon  said  G H. . . .  on  the  ....  day  of , 

19.. 

III.  That  thereupon  the  said  principal  defendant  E. . . . 
F. . . .  desiring  to  have  the  said  garnishment  released,  applied 


Chapter  LXXXII.]  1329  [Form  1781. 

to  the  court  for  an  order  fixing  the  terms  of  the  undertaking 
to  be  given  to  procure  such  release. 

IV.  That  the  said  court,  by  an  order  dated 19. ., 

fixed  the  terms  of  the  undertaking  for  such  release,  as  follows: 
That  upon  the  principal  defendant  filing  an  undertaking  in 

the  office  of  the  clerk  of  the  said   court  of   

county  to  the  effect  that  the  sureties  would  pay  on  demand 
to  the  plaintiff  the  amount  of  the  judgment  with  all  costs 
that  might  be  recovered  against  such  defendant  not  exceed- 
ing the  sum  of dollars,  that  then  the  said  garnish- 
ment up  to  the  amount  of  said   dollars,   should  be 

released. 

V.  That  pursuant  to  said  order  the  said  defendant,  on 
the  ....  day  of 19. .,  executed  and  filed  an  under- 
taking in  the  office  of  the  clerk  of  said  court  whereby  it 
undertook,  covenanted  and  agreed  that  it  would  on  demand 
pay  to  the  plaintiff  A ....  B ... .  the  amount  of  the  judgment 
with  all  costs  that  might  be  recovered  against  the  said  de- 
fendant E . . . .  F . . . .  in  said  action,  not  exceeding  the  sum 

of dollars,  a  true  copy  of  which  undertaking  is  hereto 

annexed,  marked  "Exhibit  A",  and  made  a  part  of  this 
complaint. 

VI.  That  on  the  ....  day  of ,  19 . . ,  the  said  plain- 
tiff A.  ...  B ... .  recovered  judgment  against  the  said  defend- 
ant E . . . .  F . . . .  in  the  sum  of dollars,  no  part  of 

which  has  been  paid. 

VII.  That  on  the  ....  day  of ,  19. .,  the  plaintiff 

in  this  action  demanded  of  the  defendant  herein  the  payment 

up  to  the  amount  of dollars,  but  the  said  defendant 

neglected  and  refused  to  pay  said  judgment  or  any  part 
thereof,  and  still  neglects  and  refuses  to  do  so. 

WHEREFORE  plaintiff  demands  judgment  against  the 

defendant  for  the  sum  of dollars,  with  interest  from 

the  ....  day  of ,  19 . .,  together  with  the  costs  of  this 

action. 

0....  P.... 
[Verification.]  Plaintiff's  Attorney. 

84 


Form  1782.]  1330  [Chapter  LXXXII. 

1782.  Complaint  by  creditor  of  deceased  person  to  reacli 
lands  purchased  by  deceased,  and  conveyed  to 
another,  and  subject  them  to  a  trust  in  favor  of 
creditors,  under  Wis.  Stats.  1898  sec.  3835  (sus- 
tained in  Allen  v.  McRae,  91  Wis.  226;  64  N.  W. 
889). 

The  above  named  plaintiff,  for  her  cause  of  complaint  re- 
spectfully shows  to  the  court,  and  alleges  in  behalf  of  herself 
and  the  other  creditors  of  L. . . .  M. . . .  deceased: 

I.  That  one  L. . . .  M . . . .,  being  at  the  time  wholly  in- 
solvent and  indebted  to  this  plaintiff  and  others,  did  on  the 

....  day  of ,  19 . . ,  purchase  from  one  X . . .  .  Y . . . . , 

and  W. . . .  Y. . . .,  her  husband,  the  following  described  land 

and  real  estate,  situate  in  the  city  of ,  in  the  county  of 

and  state  of    ,   described  as  follows,  to-wit 

[describe  land].  That  the  said  L. . . .  M. . . .  paid  and  ad- 
vanced the  entire  consideration  and  purchase  money  of  the 
land  and  real  estate  above  described,  but  caused  the  title 

thereto  to  be  conveyed  to  the  said  C . . . .  D the  above 

named  defendant,  by  good  and  sufficient  warranty  deed  in 
the  usual  form  by  the  said  X . . . ,  Y . . . .  and  W . . . .  Y . . . . 
instead  of  himself,  and  the  said  C . . . .  D . . . .  became  vested 
with  the  legal  title  thereto;  that  said  transfer  to  said  C. . . . 
D . . . ,  of  said  land  and  real  estate  was  made  and  intended  to 
be  in  secret  parol  trust  for  the  sole  use  and  benefit  of  said 
L. . . .  M. . . .  pursuant  to  an  agreement  and  understanding 
existing  between  said  L . . . .  M  . . . .  and  said  C . . . .  D . . . , 
for  the  sole  purpose  and  with  intent  to  injure,  hinder,  delay 
and  defraud  the  creditors  of  the  said  debtor  L. . . .  M . .  . .,  so 
that  the  said  above  described  property  and  real  estate  so 
fraudulently  conveyed,  as  aforesaid,  could  not  be  subjected 
to  the  payment  of  the  debts  of  the  said  L.  .  .  .  M .  .  .  . ;  that 
the  legal  title  to  the  above  described  land  and  real  estate  has 
continued  to  remain  in  the  said  C .  .  . .  D ,  .  .  .  ever  since  the 

....  day  of ,  19 .  .,  in  fraud  of  the  existing  creditors  of 

said  L . . . .  M . . . . ;  that  said  defendant  E . .  . .  D . . . .  w^as 
and  is  the  husband  of  the  defendant  C .  .  .  .  D . . . .  and  acted 
as  her  agent  in  all  of  her  dealings  with  the  said  L.  . . .  M . . . . 
and  at  all  of  the  times  herein  mentioned  the  said  defendants 
C . . . .  D . . . .  and  E . . . .  D . . . .  have  resided  and  still  do 
reside  in  the  city  of 


Chapter  LXXXIL]  1331  [Form  1782. 

II.  That  the  said  L M . . . . ,  at  the  time,  was  indebted 

to  this  plaintiff  in  the  sum  of dollars,  and  was  in- 
debted to  divers  other  parties,  and  continued  up  to  the  time 

of  his  death, ,  19. .,  to  be  wholly  insolvent;  that  on  the 

day  of ,  19. .,  this  plaintiff  duly  filed  her  claim, 

as  provided  by  statute,  against  the  estate  of  L. ...  M ....  in 

the   court  of county,  and  that  on  the  .... 

day  of ,  19 . . ,  said  claim  came  up  for  hearing,  and  after 

a  trial  on  its  merits  judgment  was  rendered  in  this  plaintiff's 

favor  for  the  sum  of   dollars;  that  of  that  sum  of 

dollars  there  was  due  and  owing  to  this  plaintiff 

at  the  time  of  the  transfer  of  the  heretofore  described  prop- 
erty to  the  said  C . . . .  D .  . . .  the  sum  of dollars. 

III.  That  0 P has  been  duly  appointed  and  is 

now  the  administrator  of  the  estate  of  the  said  L. . .  .  M 

deceased,  and  that  as  such  administrator  no  funds  belonging 
to  said  estate  have  come  into  his  hands,  and  that  there  is  no 
property  belonging  to  said  defendant  out  of  which  this 
plaintiff  can  collect  her  claim. 

IV.  That  on  the day  of 19. .,  an  execution 

by  leave  of  court  w^as  duly  issued  out  of  the court  of 

county,  on  a  judgment  rendered  in  an  action  in  which 

R. . . .  S . . . .  was  plaintiff  and  L. . . .  M . . . .  was  defendant, 

and  on  the  ....  day  of ,  19 .  . ,  said  execution  was  duly 

returned  wholly  unsatisfied,  showing  the  estate  of  the  above 
named  L. . .  .  M . . . .  to  be  wholly  insolvent;  that  this  plain- 
tiff brings  this  action  in  behalf  of  herself  and  all  the  other 
creditors  of  L. , .  .  M. . . .  whose  claims  existed  at  the  time 
of  the  transfer  of  said  above  described  lands  and  real  estate 

to  the  defendant  C D . . . . ,  to-wit,  on  the day  of 

,19.. 

WHEREFORE,  plaintiff  asks  that  the  defendant  C 

D ....  be  adjudged  a  trustee  of  the  above-described  land  and 
real  estate  for  the  benefit  of  this  plaintiff  and  the  other  exist- 
ing creditors  of  the  said  L M at  the  time  of  said 

above-mentioned  conveyance,  and  that  the  court  appoint 
a  receiver  to  take  and  sell  said  property  or  so  much  thereof  as 
may  be  necessary  to  pay  the  existing  creditors  of  the  said 
L. . . .  M.  . . .,  and  that  the  said  creditors  be  called  in  and  an 
order  made  for  the  payment  of  their  said  claim,  and  that  the 

said  defendants  £ D and  C D be  required 

to  account  for  the  rents  and  profits  of  said  real  estate  to 


Form  1783.]  1332  [Chapter  LXXXII. 

said  receiver,  from  the  ....  day  of ,  19 . .,  if  the  same 

shall  be  necessary  to  pay  this  plaintiff's  claim  with  interest 
and  costs  of  this  action,  together  with  the  claim  of  the  other 
existing  creditors,  with  interest  on  the  same,  and  to  grant 
such  other  or  further  relief  or  judgment  as  to  the  court  may 
seem  just  and  equitable. 

1783.  Complaint  to  enjoin  use  of  trademark  and  label, 
and  to  recover  damages  (sustained  in  Leiders- 
dorf  V.  Flint,  50  Wis.  401;  7  N.  W.  252). 

I.  That  the  above  named  plaintiffs  are  co-partners  in 
trade  doing  business  under  the  firm  name  and  style  of  A,  .  . . 

B . . .  .  &  Co.,  at  the  city  of and  elsewhere,  and  as  such 

are  manufacturers  and  dealers  in  tobacco. 

II.  That  during  all  the  time  the  said  fir  in  of  A. . . .  B . . . . 
&  Co.  has  been  in  existence,  they  have  manufactured  and  sold 
a  special  article  of  smoking  tobacco,  put  up  in  packages  of  a 
certain  form  in  paper  wrappers  of  a  particular  color  and  mark, 
and  stamped  with  the  words  and  name  "Nigger  Hair 
Smoking  Tobacco,"  and  otherwise  distinctively  marked  and 
designated,  as  hereinafter  set  forth. 

III.  That  during  all  the  said  period  of  ....  years  they 
have  exclusively  used  and  are  now  using,  and  had,  and  still 
have  the  right  so  to  use  the  said  name  and  mark  hereinafter 
more  particularly  described,  as  a  trademark  for  such  smoking 
tobacco;  and  that  no  other  person  than  the  said  firm  has  at 
any  time  had  the  right  to  make  use  thereof  or  of  any  like 
mark  or  name,  or  of  any  near  resemblance  thereto. 

IV.  That  at  the  present  time  and  for  many  years  last 
past,  the  plaintiff's  said  firm  have  packed  such  tobacco  in 
yellow  wrappers  on  which  were  printed  in  black  ink  the  words 
[here  describe  label  particularly  and  fully].  That  these  words 
and  marks,  together  with  the  vignette  so  printed  and 
stamped  on  packages  and  labels  as  herein  stated,  and  the 
general  disposition  and  arrangement  thereof  as  set  forth, 
constitute,  and  during  the  period  aforesaid  have  constituted 
the  proper  trademark  of  the  said  firm  of  A.  . . .  B  .  .  . .  &  Co., 
and  the  same  has  during  said  period  been,  and  is  now,  used 
and  employed  by  them,  both  upon  said  packages  of  smoking 
tobacco  and  upon  labels  and  cards  affixed  to  boxes  and  cases 
containing  the  same,   and  to  exhibit  for  advertising  said 


Chapter  LXXXIL]  1333  [Form  1783. 

tobacco,  as  the  peculiar  and  proper  trademark  of  the  said 
A B....  &  Co. 

V.  That  by  reason  of  the  long  experience,  industry,  hon- 
esty and  great  care  of  said  plaintiffs'  firm  in  their  business, 
and  the  good  quality  of  their  said  smoking  tobacco,  and  the 
peculiar  and  distinct  features  of  their  said  trademark,  the 
said  "Nigger  Hair  Tobacco"  has  become  widely  and  familiar- 
ly known  to  the  trade  throughout  various  portions  of  the 
country  as  an  excellent  and  reliable  article  of  smoking  to- 
bacco, and  has  acquired  a  high  reputation  as  such,  and  has 
commanded,  and  still  commands  very  extensive  sales, 
which  are  a  source  of  great  profit  and  revenue  to  these 
plaintiffs. 

VI.  That  the  said  smoking  tobacco  is  known  to  the  trade 
and  to  the  public  and  to  the  buyers  and  consumers  thereof 
by  the  name  of  "Nigger  Hair  Smoking  Tobacco,"  and  by  the 
plaintiffs'  own  peculiar  device  and  trademark  aforesaid. 

Vn.  That  the  said  tobacco  is  a  low  priced  tobacco,  and 
is  to  a  very  large  extent  bought  and  consumed  by  a  class  of 
people  who  cannot  read,  and  whose  necessities  and  manner  of 
living  do  not  require  them  to  practice  more  than  ordinary 
caution  when  purchasing  the  commodities  most  frequently 
procured;  and  to  this  class  of  people  the  said  tobacco  has 
become  known  and  is  easily  recognized  largely  by  reason  of 
the  said  peculiar  and  distinctive  trademark  aforesaid,  a  copy 
or  specimen  of  which,  upon  one  of  said  paper  wrappers,  is 
hereto  attached  and  marked  "Exhibit  A,"  and  to  which 
reference  is  here  ma>de. 

Vni.  And  the  plaintiffs  further  allege  that  notwith- 
standing the  long  and  quiet  use  and  enjoyment  by  said 
A. . . .  B . . . .  &  Co.  of  said  trademark,  the  defendant  C . . . . 
D....,  well  knowing  and  understanding  these  plaintiffs' 
rights,  but  wilfully  disregarding  the  same,  at  some  time  in 
the  year  19. .,  the  precise  date  whereof  is  unknown  to  plain- 
tiffs, devised,  prepared  and  executed,  or  procured  to  be  de- 
vised, prepared  and  executed,  a  certain  device  and  paper 
wrapper  and  show  cards  in  imitation  and  counterfeit  of 
those  of  the  plaintiffs  hereinbefore  described,  and  then  and 
since  then  has  and  does  manufacture  and  sell  and  offer  for 
sale  a  certain  grade  of  smoking  tobacco  similar  in  many 
respects  to  that  of  the  plaintiffs,  but  inferior  thereto  in  qual- 
ity, and  has  and  does  offer  for  sale  the  same  in  the  wrappers 


Form  1783.]  1334  [Chapter  LXXXII. 

last  aforesaid,  put  up  in  packages  of  the  form,  style,  color 
and  general  appearance  of  the  said  "Nigger  Hair  Tobacco" 
of  the  plaintiffs,  and  has  sold  and  still  continues  to  sell  the 

same  in  large  quantities  within  the  state  of    and 

elsewhere,  thus  labelled,  marked  and  made  up  in  imitation 
of  plaintiffs'  said  trademark  and  packages. 

IX.  That  said  defendant,  until  about  the   ....   day  of 

,  in  the  year  19 .  .,  employed  in  his  said  imitation  and 

counterfeit  of  plaintiffs'  trademark,  marks  and  devices  of 
such  striking  and  close  resemblance  thereto,  both  in  the 
vignette  aforesaid  and  in  the  marks  and  letters  about  the 
same  and  otherwise,  that  the  distinction  and  difference  be- 
tween plaintiffs'  trademark  and  defendant's  said  imitation 
could  be,  and  is,  discovered  and  noticed  only  by  the  most 
cautious  and  wary  purchaser  and  consumer  of  tobacco,  and 
would  scarcely  be  discerned  at  all  by  persons  practicing  ordi- 
nary observation,  or  whose  attention  had  not  been  specially 
directed  thereto.  That  defendant's  said  imitation  contains 
the  words  "Big  Indian'"  at  the  corresponding  place  in  the 
label  as  the  words  "Nigger  Hair"  of  plaintiffs'  mark,  having 
the  letters  thereof  of  such  arrangement  and  construction  and 
form,  as  greatly  to  resemble  the  words  "Nigger  Hair"  of 
plaintiffs'  label,  and  above  these  words  is  the  vignette  of  a 
black  savage  closely  resembling  in  general  effect  and  general 
appearance  the  vignette  of  plaintiffs'  trademark,  both  in 
size,  color,  position,  ornamentation,  facial  angle  presented, 
and  idea;  a  copy  or  specimen  of  which  upon  one  of  the  said 
wrappers  is  hereto  attached  and  marked  "Exhibit  B,"  and 
particularly  referred  to. 

X.  And  the  plaintiffs  further  allege  that  the  said  de- 
fendant's said  imitation  has  been  so  devised,  prepared  and 
executed,  as  to  result  in  effecting  the  sale  of  the  tobacco  of 
the  defendant  as  and  for  and  instead  of  that  of  the  plaintiffs' 
known  as  aforesaid,  as  "Nigger  Hair,"  and  to  supplant  the 
plaintiffs  in  their  extensive  and  profitable  sales  thereof.  And 
although  the  plaintiffs  have  repeatedly  requested  the  defend- 
ant to  desist  in  his  use  of  the  said  counterfeit  and  imitation, 
he  has  refused  to  do  so,  but  has  so  continued  to  employ  and 
use  the  devices  and  marks  shown  at  "Exhibit  B,"  until  he 
has  established  his  said  counterfeit  article  of  tobacco  upon 
the  market,  and  introduced  it  to  the  trade  and  pubhc  as  a 
brand  of  smoking  tobacco,  which  in  appearance  and  for 


Chapter  LXXXII.]  1335  [Form  1783. 

purposes  of  sale  is  readily  and  frequently  mistaken,  sold  and 
bought  for  the  said  tobacco  of  the  plaintiffs,  and  until  he  had 
in  fact  to  the  extent  of  his  said  sales  supplanted  the  tobacco 
of  the  plaintiffs  through  said  imitated  marks  and  devices  and 
the  consequent  deceit  practiced  upon  the  public  thereby; 
and  until  he  had  so  wrongfully  attracted  and  diverted  trade 
from  the  plaintiffs  to  himself  by  the  means  aforesaid. 

XI.  And  the  plaintiffs  further  say  they  are  informed  and 
believe  that  said  defendant  so  as  aforesaid  continued  to  use 
said  imitation  of  plaintiffs'  trademark,  until  believing  he 
could  retain  and  keep  the  trade  so  as  aforesaid  already 
attracted  and  diverted  to  him,  by  means  of  further  using  a 
less  close  and  striking  resemblance  to  plaintiffs'  trademark, 
he  artfully  contrived  and  executed  certain  changes  in  his 
said  imitation  of  plaintiffs'  trademark,  so  as  to  be  able  to 
assert  the  pretense  and  excuse  that  he  had  ceased  using  the 
imitation  shown  at  "Exhibit  B",  whereas  in  fact  the  said 
modification  and  changes  were  not  in  the  chief  characteristic 
of  said  label,  and  the  same  still  presents  to  the  public  the 
impression  and  idea  that  the  same  is  the  badge  or  mark  of  the 
said  plaintiffs,  so  as  aforesaid  described,  and  now  does  strong- 
ly resemble  the  plaintiffs'  trademark  in  all  its  chief  and  most 
essential  features.  A  copy  of  which  said  second  device  of 
the  defendant,  and  a  specimen  of  the  same,  together  with  the 
paper  wrapper  is  hereto  attached  and  marked  "Exhibit  C." 

XII.  And  the  plaintiffs  further  allege  that  the  imitations 
aforesaid  are  calculated  to  deceive  the  general  public  and 
especially  the  small  purchasers  and  consumers  of  tobacco, 
and  that  the  form,  size,  color  and  devices  of  the  packages  of 
tobacco  of  the  defendant  are  intended  to  be  and  are  in  such 
imitation  of  and  resemblance  to  those  of  the  plaintiffs 
and  are  contrived  and  calculated  to,  and  actually  do  mislead 
the  public  in  that  regard,  and  cause  among  consumers  the 
idea  that  the  two  articles  of  tobacco  are  identical,  and  are 
manufactured  by  the  said  plaintiffs. 

XIII.  And  the  plaintiffs  further  say  that  for  several 
months  last  past,  beginning  at  a  date  which  is  unknown  to 
them,  the  defendant  has  manufactured  and  sold  smoking 
tobacco  in  the  packages  of  the  kinds  above  described,  and 
has,  as  they  are  informed  and  believe,  put  forth  the  same  in 
the  market,  and  has  endeavored  to  procure  others  to  sell  and 
deal  in  the  same,  as  the  identical  "Nigger  Hair"  tobacco  of 


Form  1783.]       '  1336  [Chapter  LXXXII. 

the  plaintiffs.  And  the  plaintiffs  are  informed  and  believe 
that  in  many  instances  the  said  tobacco  of  the  defendant 
has  been  sold  as  and  for  the  said  "Nigger  Hair"  tobacco  on 
account  of  the  similarity  of  the  appearance  of  the  packages 
and  marks  as  hereinbefore  stated. 

XIV.  And  the  plaintiffs  further  say  that  their  said  to- 
bacco had  come  to  be  very  favorably  known,  and  largely 

bought  and  consumed  in  the  state  of and  elsewhere, 

and  that  at  the  time  when  the  defendant  first  began  to  sell 
tobacco  in  packages  imitating  those  of  the  plaintiffs,  the 
amount  of  the  plaintiffs'  sales  was  very  large  and  constantly 
increasing,  and  their  trade  in  said  tobacco  was  very  extensive 
and  profitable.  And  that  the  defendant  has  greatly  injured 
and  damaged  the  plaintiffs  in  their  said  business  by  his  sales 
of  the  said  imitation  of  their  "Nigger  Hair"  tobacco,  both 
because  they  have  diminished  the  amount  of  the  sales  so 
heretofore  made  by  the  plaintiffs  of  their  said  tobacco,  and 
because  the  defendant  has  thereby  placed  upon  the  market 
an  article  of  tobacco  now  extensively  dealt  in  by  the  trade, 
which  closely  resembles  in  the  size,  color  and  general  ap- 
pearance of  the  packages  in  which  it  is  sold  by  the  defendant, 
and  in  the  marks  upon  the  same,  the  said  packages  manu- 
factured and  sold  by  the  plaintiffs,  and  which  is  of  an  inferior 
quality  thereto,  and  which,  as  aforesaid,  is  frequently  mis- 
taken for  the  tobacco  of  the  plaintiffs  for  the  reasons  afore- 
said, and  has  thereby  injured  the  reputation  of  the  plaintiffs' 
said  tobacco  among  those  who  purchase  or  have  purchased 
defendant's  said  tobacco,  supposing  it  to  be  that  manu- 
factured by  the  plaintiffs. 

XV.  And  the  plaintiffs  further  say  that  before  the  com- 
mencement of  this  action  they  requested  the  defendant  to 
desist  from  using  both  of  said  imitations  above  described 
and  from  their  said  infringement  of  plaintiffs'  trademark,  and 
to  pay  to  the  plaintiffs  what  upon  a  just  accounting  there 
would  be  due  to  them  therefor,  but  the  defendant  refused  so 
to  do,  and  still  continues  to"  manufacture  and  sell  such  to- 
bacco put  up  and  stamped  in  imitation  of  the  plaintiffs* 
trademark  as  aforesaid  and  in  disregard  and  violation  of 
their  rights,  and  thus  threatens  to  cause  irreparable  injury 
to  the  plaintiffs. 

XVI.  And  the  plaintiffs  further  say  that  by  reason  of  the 
premises  and  of  the  aforesaid  acts  and  doings  of  the  said 


Chapter  LXXXIL]  1337  [Form  1784. 

defendant,  they  have  been  injured  to  their  damage 

dollars. 

WHEREFORE  the  plaintiffs  demand  judgment  against 
the  defendant: 

1.  That  the  said  defendant,  his  agents  and  servants  may 
be  perpetually  enjoined  from  using  the  marks  and  devices 
now  used  by  him  or  heretofore  used  by  him,  and  shown  by 
copies  as  "Exhibit  B"  and  "Exhibit  C,"  and  from  using 
any  other  marks,  names  or  letters  in  imitation  of  the  plain- 
tiffs' trademark,  or  of  any  resemblance  thereto. 

2.  That  the  defendant  make  full  and  true  and  perfect  ac- 
count of  all  the  profits  of  every  description,  which  he  has 
made  or  might  have  made  upon  sa'es  of  smoking  tobacco 
made  by  him  or  his  agents  wherein  the  packages  of  tobacco 
sold  bore  any  device  or  marks  similar  to  or  like  plaintiffs' 
trademarks;  and  that  he  be  adjudged  and  decreed  to  pay 
over  all  of  such  profits  to  the  plaintiffs. 

3.  For  the  sum  of dollars. 

4.  For  the  costs  of  this  action,  and  for  such  other  and 
further  relief  as  to  the  court  shall  seem  just. 

1784.  Complaint  by  grantee  of  real  estate,  whose  deed 
was  unrecorded,  against  grantor  for  conveying 
same  to  an  innocent  purchaser  (sustained  in 
Ring  V.  Ogden,  45  Wis.  303). 

I.  That  on  and  prior  to  the  day  when  the  deed  first  here- 
inafter mentioned  was  executed  and  delivered,  C . . . .  D . . . . , 
the  defendant  in  this  action,  was  the  owner  in  fee  simple  of 
the  following  described  real  estate,  situate,  lying  and  being 

in  the  county  of and  state  of ,  and  known  and 

designated  as  so  much  of  [give  description]. 

II.  That  on  or  about  the  ....  day  of ,  19. .,  the 

defendant,  by  his  certain  warranty  deed  of  that  date,  exe- 
cuted by  himself  and  wife,  under  their  hands  and  seals,  and 
duly  stamped  according  to  the  act  of  congress  in  such  case 
made  and  provided,  and  delivered  to  one  J. . . .  K. . . .,  of 

the  city  of ,  conveyed  said  real  estate  to  said  J . . , . 

K. . . .  in  fee  simple. 

III.  That  afterwards,  and  on  or  about  the  ....  day    of 

,  19 . . ,  the  said  J .  .  .  .  K . . .  .  by  his  quitclaim  deed  of 

that  date,  executed  by  himself  and  his  wife  under  their 


Form  1784.1  1338  [Chapter  LXXXII. 

hands  and  seals,  and  delivered  to  the  plaintiff,  conveyed  said 
real  estate  in  fee  simple. 

IV.  That  neither  of  the  aforesaid  deeds  have  ever  been 

recorded  in  the  office  of  the  register  of  deeds  of   

county. 

V.  That  afterwards,  and  on  or  about  the   ....  day  of 

19 . .,  the  defendant,  well  knowing  that  he  had  parted 

with  said  real  estate  as  aforesaid,  and  that  he  had  no  longer 
any  interest  therein,  fraudulently  and  wrongfully  and  by 
means  of  his  certain  quitclaim  deed  of  that  date,  executed 
by  himself  and  his  wife  under  their  hands  and  seals,  conveyed 
the  same  real  estate  to  one  L . . . .  M .  .  . . ,  which  deed  was 

recorded  in  the  office  of  the  register  of  deeds  of county, 

on  the  ....  day  of ,  19 .  . ,  on  page  ....  of  volume  .... 

of  the  Records  of  Deeds  in  said  office,  that  said  defendant 

having  previously,  and  on  or  about  the  ....  day  of , 

19.  .,  well  knowing  that  he  had  parted  with  said  real  estate 
as  aforesaid,  and  that  he  no  longer  had  any  interest  therein, 
fraudulently  and  wrongfully  and  by  means  of  his  certain 
warranty  deed  of  that  date,  executed  by  himself  and  his  wife 
under  their  hands  and  seals,  conveyed  the  same  real  estate 
to  the  same  L. . . .  M. . . .,  which  deed  was  also  recorded  on 

the  ....  day  of ,  19.  .,  on  page  ....  of  volume  .... 

of  the  Records  of  Deeds,  in  said  office  of  the  register  of  deeds 
of county. 

VI.  That  afterwards,  and  on  or  about  the  ....  day  of 

,  19. .,  the  said  L. . . .  M . . . .  by  his  warranty  deed  of 

that  date,  executed  by  himself  and  his  wife  under  their  hands 
and  seals,  conveyed  the  same  real  estate  to  R. . . .  S. . . . 

VII.  The  plaintiff  alleges,  upon  his  information  and 
belief,  that  the  said  R . . . .  S . . . .  when  the  deed  last  aforesaid 
was  executed  and  delivered  to  him,  had  no  knowledge  or 
information  of  said  unrecorded  deeds  or  either  of  them; 
and  the  plaintiff  further  alleges  that  said  real  estate  was  then 
and  there  vacant  and  unoccupied,  and  that  said  R . . .  .  S . . . . , 
by  means  of  said  last  mentioned  deed  became  an  innocent 
purchaser  of  said  real  estate,  and  was  and  ever  since  has  been 
the  rightful,  and  legal  owner  thereof  to  the  exclusion  of  the 
plaintiff's  just  rights  therein.  The  plaintiff  further  shows 
that  said  last  mentioned  deed  was  recorded  in  the  office  of 
said  register  of  deeds  on  the  ....  day  of 19. .,  on 


Chapter  LXXXIL]  1339  [Form  1785. 

page of  volume of  the  Records  of  Deeds  in  said 

office. 

VIII.  The  plaintiff  further  shows  that  by  reason  of  the 
aforesaid  fraudulent  and  wrongful  acts  of  the  defendant, 
whereby  the  plaintiff  lost  and  was  deprived  of  the  title  of  said 
real  estate  as  aforesaid  he  has  suffered  damage  and  loss  to 

the  amount  of dollars,  of  which  sum  the  defendant 

has  paid  to  the  plaintiff,  in  part  satisfaction  thereof,  the  sum 
of dollars,  and  no  more. 

WHEREFORE  the  plaintiff  demands  judgment  of  this 
court,  that  he  recover  of  and  from  the  defendant  the  sum  of 

dollars,  the  balance  remaining  unpaid  of  his  damages 

in  the  premises,  and  the  costs  of  this  action. 

1785.  Complaint  for  maliciously  filing  lis  pendens  and 
preventing  sale  of  plaintiff's  land  (sustained  in 
Smith  V.  Smith,  20  Hun,  555). 

I.  That  at  the  times  hereinafter  mentioned  the  plaintiff 
was  and  still  is  the  owner  in  fee  of  the  following  described 

premises  in  the  city  of ,  state  of ,  viz.  [describe 

premises]. 

II.  That  the  defendants,  on  the day  of ,  19 . . , 

through  their  attorney  duly  authorized,  filed  or  caused  to  be 
filed  in  the  office  of  the  register  of  deeds  of  the  county  of 

in  said  state,  being  the  county  in  which  said  real 

estate  is  situated,  a  notice  of  the  pendency  of  an  action  in 
the court,  wherein  the  defendants  herein  were  plain- 
tiffs, and  this  plaintiff  and  others  were  defendants,  in  which 
notice  it  was  alleged  that  said  last  named  action  had  been 
commenced  and  was  pending,  to  recover  the  alleged  interest 
of  one  G. . . .  H.  . . .  in  the  said  premises;  that  the  complaint 
in  said  action  was  filed  in  the  office  of  the  clerk  of  said  court 
on  said  day,  and  was  referred  to  in  said  notice,  and  alleged 
and  declared  the  said  premises  to  be  the  property  of  said 
G. .  .  .  H. . . .,  and  that  plaintiff's  title  thereto  was  fraudu- 
lent and  void  as  against  the  plaintiffs  therein,  who  alleged 
that  they  were  judgment  creditors  of  said  G.  . . .  H.  . . . 

III.  That  the  said  defendants,  well  knowing  that  plain- 
tiff was  in  fact  the  owner  of  said  premises,  maliciously  and 
without  reasonable  or  probable  cause,  continued  to  cause  it 
to  be  suspected  that  this  plaintiff  was  not  the  owner  of  said 


Form  1786.]  1340  [Chapter  LXXXII. 

premises,  but  that  her  apparent  title  thereto  was  fraudulent 
and  void,  and  to  prevent  this  plaintiff  from  effecting  a  sale 
thereof,  wrongfully  and  maliciously,  and  without  probable 
cause  therefor  or  for  the  bringing  of  said  action,  caused  said 
notice  to  be  filed  as  aforesaid,  and  thereby  gave  notice  to 
all  the  world  of  all  the  matters  alleged  in  said  notice  and  in 
said  complaint. 

IV.  That  the  statements  and  allegations  contained  as 
aforesaid,  in  said  notice,  and  in  said  complaint,  charging  that 
the  plaintiff's  title  to  said  lands  was  fraudulent  and  void, 
were  and  are  wholly  false,  and  were  made  maliciously  and 
without  probable  cause,  and  with  the  intent  to  injure  the 
sale  of  said  premises,  as  well  as  this  plaintiff,  and  to  prevent 
the  sale  of  said  premises. 

V.  That  thereafter,  and  on  the  ....  day  of 19. ., 

the  said  notice  of  pendency  of  action  was  duly  canceled  of 

record,  by  order  of  said court,  which  order  was  duly 

made  upon  the  application  of  the  defendants,  through  their 
said  attorney,  whereby  the  said  notice  ceased  to  have  any 
effect. 

VI.  That  after  the  filing  of  said  notice  and  before  the 
same  was  canceled,  as  aforesaid,  to-wit,  on  or  about  the  .... 

day  of ,  19. .,  this  plaintiff  had  a  bona  fide  offer  and 

could  have  sold  said  premises  for  the  sum  of dollars, 

to  one  J. . . .  K.  . . .,  but  that  in  consequence  of  the  filing  of 
said  notice,  and  the  allegations  contained  therein  and  in  said 
complaint,   plaintiff  was.  prevented   from   effecting   a   sale 

thereof  to  said  purchaser,  to  the  plaintiff's  damage 

dollars. 

WHEREFORE  the  plaintiff  demands  judgment  for  the 

said  sum  of dollars,  with  the  costs  and  disbursements 

of  this  action. 

1786.  Outline  of  complaint  by  chattel  mortgagee  as  In- 
tervenor  in  an  action  by  the  mortgagor  against 
wrong  doer  for  destruction  of  the  mortgaged 
property. 

Now  comes  A . .  . .  B . . . .  intervening  in  the  above  entitled 
action  and  alleges: 

I.  [Allege  the  giving  by  the  plaintiff  in  the  action  of  the 
note  or  notes  which  the  chattel  mortgage  secures,  describing  the 


Chapter  LXXXII.]  1341  [Form  1787. 

note  or  notes  accurately  or  giving  copies  of  them.] 

II.  Allege  the  giving  of  the  chattel  mortgage  to  the  inter- 
venor  to  secure  the  notes  and  the  due  recording  of  the  mortgage 
in  the  proper  office,  giving  a  copy  of  it  or  a  sufficient  statement 
of  its  provisions.] 

III.  [Allege  the  facts  showing  that  the  defendant  negligently 
or  wilfully  destroyed  the  mortgaged  property  or  injured  the 
same,  and  also  allege  the  value  of  the  property  and  the  amount 
of  damage.] 

IV.  [Allege  the  amount  due  on  the  debt  secured  by  the 
mortgage  at  the  time  of  the  destruction  or  injury  of  the  property 
and  that  it  still  remains  due.] 

V.  [Allege  the  fact,  if  it  be  a  fact,  that  the  maker  of  the 
note  are  insolvent  and  that  the  mortgaged  property  is  entirely 
insufficient  security  for  the  debt,  showing  what  the  deficit  will 
be.] 

WHEREFORE  this  intervenor  demands  judgment  against 

the  defendant  for dollars,  with  costs,  and  that  the 

claim  of  the  intervenor  be  given  preference  over  any  claim  of 
the  plaintiff  in  this  action. 


1787.    Outline  of  complaint  for  damages  on  account  of 
change  of  street  grade. 

I.  [Allege   incorporation   of  the  defendant  city.] 

II.  [Allege  the  plaintiff's  ownership  of  the  lot  or  property 
damaged  by  the  change  of  grade,  describing  the  same.] 

III.  [Allege  the  establishment  by  the  city  of  the  first  grade  of 
the  street  adjacent  to  the  plaintiff's  lot  and  state  the  time  when 
the  said  grade  was  established,  that  the  street  was  actually 
brought  to  the  grade  so  established,  and  that  the  plaintiff's  lot 
and  other  lots  along  the  street  were  fully  graded  and  improved 
to  correspond  to  the  grade  of  the  street  so  established.] 

IV.  [Allege  the  buildings  that  were  erected  in  accordance 
with  that  grade  and  other  improvements  which  were  made.] 

V.  [Allege  the  establishment  of  the  new  grade  and  the  date 
thereof  and  the  difference  between  the  second  grade  and  the 
first;  also  allege  the  consequences  of  such  change  of  grade  to 
the  plaintiff's  property,  the  impairment  of  access  thereto  or  the 
necessity  of  building  retaining  walls  or  otherwise.] 


Forms  1788,  1789.]  1342  [Chapter  LXXXII. 

VI.  [Allege  the  money  damage  resulting  from  such  change  of 
grade  to  the  plaintiff's  property.] 

WHEREFORE  [demand  of  Judgment  for  the  money  damages 
so  created.] 

1788.  Complaint  by  surety  to  compel  principal  to  pay 

the  debt  for  which  surety  is  bound  (Minn.  Gen. 
Stats.  1913  sec.  7684). 

I.  That  on  the  ....  day  of the  defendant  G . , , . 

D . . . .  made  and  delivered  to  the  defendant  E . . . .  F . . . . 
his  promissory  note  in  writing  of  which  the  following  is  a 
copy  [insert  copy  of  note]  [If  the  instrument  was  a  bond  or 
other  contract  state  the  fact  and  insert  or  attach  a  copy.] 

II.  That  prior  to  the  delivery  of  said  note  [bond  or 
contract  as  the  case  may  be]  the  plaintiff  at  request  of  the  said 

C E) . . . .  signed  the  same  as  surety  for  the  said  G . . . . 

D.... 

III.  [Allege  default  as  for  instance]:  That  said  note  be- 
came due  on  the  ....  day  of 19 .  .  but  no  part  thereof 

has  been  paid  and  there  is  now  due  thereon dollars 

with  interest  from ,  19. .,  for  which  sum  the  plaintiff 

is  liable  as  surety  aforesaid.  [//  the  contract  be  not  a  note  the 
default  and  the  amount  due  should  be  otherwise  set  forth, 
according  to  the  fact,  practically  as  if  the  pleading  were  a  com- 
plaint in  an  action  by  E . . . .  F . , . .  against  C. . . .  D . . . .  for 
for  breach  of  the  contract.] 

WHEREFORE  plaintiff  demands  judgment  against  de- 
fendant  G....    D....    adjudging  that  he  pay   defendant 

E. . . .  F dollars,  the  amount  due  on  said  note, 

including  interest,  with  costs  to  plaintiff. 

1789.  Outline  of  complaint  for  injury  to  business  from 

sale  of  impure  food. 

I.  [Allege  the  corporate  existence  of  either  or  both  parties 
according  to  the  fact  as  in  Forms  848  or  849.] 

II.  [Allege  the  business  of  the  plaintiff.] 

III.  [State  the  business  of  the  defendant  and  show  that  it 
was  dealing  in  the  food  which  is  charged  to  have  been  impure.] 

IV.  [Allege  the  purchase  by  the  plaintiff  of  the  defendant 
of  the  food  which  is  claimed  to  have  been  impure  and  the  sale 
thereof  to  plaintiff's  customers.] 


Chapter  LXXXIL]  1343  [Forms  1790,  1791. 

V.  [Allege  the  impure  character  of  said  food  and  that  same 
was  known  or  ought  to  have  been  known  to  the  defendant,  and 
allege  further  the  consequences  upon  the  plaintiff's  customers.] 

VI.  [Allege  injury  to  the  plaintiff  in  his  good  name  and 
reputation  and  in  his  business,  and  allege  the  amount  of  dama- 
ges.] 

WHEREFORE,  etc. 

1790.  Outline  of  complaint  against  sheriff  and  purchaser 

on  execution  to  set  aside  levy  upon  plaintiff's 
homestead. 

I.  [Allege  the  official  character  of  the  defendant  sheriff.] 

II.  [Allege  the  plaintiff's  ownership  of  the  premises  and 
the  fact  that  it  was  prior  to  the  execution  levy  and  still  is  plain- 
tiff's homestead.] 

III.  [Allege  the  recovery  of  the  judgment  against  the  plain- 
tiff on  which  the  execution  in  question  was  issued.] 

IV.  [Allege  the  issuance  of  the  execution  and  its  receipt  by 
the  sheriff.] 

V.  [Allege  the  sale  of  the  premises  by  the  sheriff  under  the 
direction  of  the  judgment  creditor  and  the  striking  off  of  the 
same  to  the  other  defendant  also  the  delivery  of  the  sheriff's 
certificate  of  sale  to  the  purchaser.] 

VI.  [Allege  that  the  defendants  had  notice  at  the  time  of  the 
sale  that  the  premises  were  the  homestead  of  the  plaintiff.] 

VII.  [Allege  that  the  sale  and  certificate  constitute  a  cloud 
on  the  plaintiff's  title.] 

WHEREFORE  [demand  of  judgment  vacating  the  levy  and 
sale  and  cancelling  the  certificate.] 

1791.  Outline  of  complaint  for  refusal  to  transfer  cor- 

porate stock  on  books.^ 

I.  [Allege  the  corporate  character  of  the  defendant  as  in 
Form  848.] 

II.  [Allege  the  ownership  by  the  third  person  from  whom  the 
plaintiff  claims  title  of  the  shares  of  stock  in  question,  describing 
the  same.] 

^  In  Wisconsin  the  transfer  may  the  stock.     Wis.  Stats.   1913  sec. 

be  compelled  by  order  of  the  court  1752;  Com.  Exch.  Bank,  is  Kaiser 

upon  motion  unless  there  be  a  bona-  160  Wis.  199;  151  N.  W.  259. 
fide  dispute  as  to  the  ownership  of 


Form  1792.]  1344  [Chapter  LXXXII. 

III.  [Allege  the  transaction  by  which  the  plaintiff  became 
the  owner  of  such  shares  as,  for  instance,  that  he  received  them 
as  collateral  security  for  a  loan  from  the  owner,  which  has  not 
been  paid.] 

IV.  [Allege  the  giving  of  notice  by  the  plaintiff  to  the  de- 
fendant's secretary  of  his  ownership  of  the  stock  and  a  demand 
that  the  same  be  transferred  to  plaintiff's  name  on  the  books; 
also  the  refusal  to  make  such  transfer.] 

V.  [Allege  the  value  of  the  stock  and  the  damages  which 
the  plaintiff  has  suffered  by  reason  of  the  refusal  to  make  the 
transfer.] 

WHEREFORE  [demand  of  money  judgment.] 

1792.    To  compel  issuance  of  corporate  stock  certificate. 

I.  [Allege  incorporation  of  the  company  whose  shares  are 
involved  in  the  litigation  and  that  the  defendant  C. . . .  D. . . . 
is  the  secretary  thereof.] 

II.  [Allege  that  at  a  certain  date,  naming  it,  one  E.... 
F . . . .  owned shares  of  the  capital  stock  of  the  corpora- 
tion and  the  same  stood  in  his  name  on  the  books  of  said  cor- 
poration and  was  represented  by  certificate     No issued 

by  the  said  corporation  on  the  ....  day  of ,  19 . .  attach- 
ing copy  of  the  certificate.] 

III.  [Allege  sale  and  delivery  of  the  shares  by  E ....  F ... . 
to  plaintiff  for  a  valuable  consideration  and  indorsement  and 
transfer  of  the  certificate  to  the  plaintiff.] 

IV.  That  on  the  ....  day  of ,  19.  .,  said  plaintiff 

presented  said  certificate  at  the  ofTice  of  the  said  company 
to  the  defendant  C. . . .  D. . . .,  the  secretary  thereof,  who 
is  by  law  authorized  to  make  transfers  of  all  stock  certifi- 
cates which  had  been  sold  and  assigned  for  surrender,  for 
the  purpose  of  obtaining  a  new  certificate  for  said  shares  in 
his  own  name,  but  that  said  secretary  then  refused  and  still 
refuses  to  accept  the  surrender  of  said  certificate  and  to 
issue  a  new  certificate  for  said  shares  to  plaintiff. 

WHEREFORE  plaintiff  prays  that  the  defendant  C 

D . . . .  may  be  required  to  accept  the  surrender  of  said  cer- 
tificate of  stock  and  to  issue  a  new  certificate  to  plaintiff  for 
said  ....  shares  of  its  capital  stock. 

[See  note  to  last  preceding  form.] 


Chapter  LXXXIL]  1345  [Forms  1793,  1794 

1793.  Outline  of  complaint  to  enjoin  city  from  issuing 

municipal  bonds  because  of  illegality. 

I.  [Allege  that  plaintiff  is  a  taxpayer  of  the  city,  and  brings 
the  action  on  his  own  behalf  and  on  behalf  of  all  others  similarly 
situated.] 

II.  [Allege  incorporation  of  the  city.] 

III.  [Allege  that  the  defendants  personally  named  are 
officers  of  the  city.] 

IV.  [Allege  that  said  city  officers  threaten  and  are  about  to 
issue  municipal  bonds  describing  them.  If  an  election  has  been 
held  on  the  question  allege  it  and  give  results.] 

V.  [State  under  what  act  or  law  the  city  officers  claim  au- 
thority to  issue  the  bonds,  and  allege  why  the  act  is  unconstitu- 
tional, or  if  the  ground  of  action  is  that  the  law  has  not  been 
complied  with  or  the  legal  debt  limit  exceeded  state  the  facts 
succinctly.] 

VI.  That  the  plaintiff  has  no  adequate  remedy  at  law. 
WHEREFORE  [prayer  for  permanent  injunction  against 

signing,  delivering  or  disposing  of  the  bonds.] 

1794.  For  redelivery  of  pledge  and  an  injunction  against 

its  sale  or  transfer  (Conn.  Pr.  Act.  form  246). 

I.  That  on ,  19 .  . ,  defendant  lent  to  plaintiff 

dollars. 

II.  That  at  the  same  time  plaintiff  deposited  with  de- 
fendant ten  gold  Waltham  watches  of  the  value  of 

dollars  each,  and  signed  and  delivered  to  him  an  absolute 
bill  of  sale  thereof. 

III.  That  said  deposit  and  bill  of  sale  were  understood 
by  both  parties  to  be,  and  were  intended  for,  a  pledge  of  said 
watches  merely,  to  secure  the  repayment  of  said  loan  with 
interest. 

IV.  That  on ,  19. .,  plaintiff  tendered  to  defend- 
ant   dollars,  in  repayment  of  said  loan  with  interest, 

and  requested  defendant  to  redeliver  said  watches  to  him, 
but  defendant  refused  to  accept  said  tender  or  to  redeliver 
said  watches. 

V.  That  defendant  now  threatens  to  sell  said  watches, 
claiming  them  to  be  absolutely  his  own  under  said  bill  of  sale. 

85 


Forms  1795,  1796.]  1346  [Chapter  LXXXII. 

VI.  That  plaintiff  has  been  at  all  times  since  said 
tender,  and  now  is,  ready  to  pay  said  sum  to  redeem  said 
pledge. 

WHEREFORE  plaintiff  demands  judgment  enjoining 
defendant  from  selling  or  otherwise  disposing  of  said  watches, 
and  for  their  delivery  to  plaintiff  upon  his  pa^dng  to  defend- 
ant or  unto  court  said  sum  of dollars,  and  for  such 

other  relief  as  may  be  just,  with  costs. 

1795.  Outline  of  complaint  by  corporation  against  its 

own  director  for  neglect  of  duty. 

I.  [Allege  corporate  existence  as  in  Form  848.] 

II.  [Allege  election  of  defendant  as  director  and  length  of 
time  of  service,  and  allege  who  were  the  other  directors  consti- 
tuting the  board.] 

III.  [Allege  the  acts  by  which  the  corporation  has  been 
injured  or  its  property  lost  or  converted,  and  by  whom  and  when 
committed,  as  for  instance,  the  wrongful  withdrawal  and  con- 
version of  corporate  funds  by  other  directors  or  otherwise  ac- 
cording to  the  fact.] 

IV.  [Allege  the  negligence  of  defendant  and  his  failure  to  do 
his  duty  as  director,  as  by  failing  to  examine  the  books,  to 
attend  directors'  meetings,  to  call  attention  of  other  directors 
to  the  facts,  etc.,  as  the  case  may  be.] 

V.  [Allege  the  insolvency  of  the  persons  who  converted  the 
funds  or  other  facts  showing  that  there  is  no  remedy  against 
them  if  such  be  the  fact.] 

VI.  [Allege   amount   of  damage.] 

WHEREFORE  [demand  Judgment  for  the  amount  of 
damages], 

1796.  Statutory   action  to   determine   boundary  lines 

(Gen.  Stats.  Minn.  1913  sec.  8095). 

I.  That  plaintiff  is  the  owner  of  [describe  premises]. 

II.  That  defendant  is  the  owner  of  adjoining  lands,  to- 
wit,  [describe  premises]. 

III.  That  the  location  of  the  boundary  line  between  said 
tracts  is  in  dispute  between  the  parties  hereto  and  that  the 
true  location  thereof  depends  on  the  location  of  one  common 
point,  to-wit,  the  true  location  of  [name  the  section,  corner  or 
other  landmark  on  the  location  of  which  the  line  depends]. 


Chapter  LXXXII.]  1347  [Forms  1797,  1798. 

WHEREFORE  plaintiff  demands  judgment  defining  and 
locating  such  boundary  line  and  for  an  order  establishing  a 
permanent  stone  or  iron  landmark  for  said  [name  corner]  and 
for  such  order  respecting  costs  and  disbursements  as  to  the 
court  may  seem  just. 

1797.  Outline  of  complaint  by  executor  for  construction 

of  will. 

I.  [Allege  death  of  testator  leaving  a  will  and  name  heir  at 
law,  also  attach  copy  of  will] 

II.  [Allege  probate  of  the  will  appointment  and  qualifi- 
cation of  plaintiffs  as  executors.  Name  the  devisees,  all  of 
whom  must  be  made  defendants.] 

III.  That  in  the  administration  of  said  estate  under  said 
will,  and  in  the  execution  of  the  trusts  thereby  created, 
questions  have  arisen  as  to  the  true  meaning  of  various 
clauses  thereof,  which  can  only  be  properly  determined  by 
decree  of  this  court,  and  the  plaintiffs  are  advised  that  it  is 
necessary  to  the  proper  execution  of  their  duties  that  they  be 
instructed  by  the  court  and  that  said  will  be  construed,  and 
more  particularly  as  follows,  viz.: 

First,  as  to  the  meaning  and  interpretation  of  the  second 
paragraph  of  said  will  to-wit  [insert  same]  and  whether  the 
meaning  thereof  is  [state  one  interpretation  claimed]  or  [state 
other  interpretation]. 

Second,  [state  fully  other  questions  arising.] 

WHEREFORE  the  plaintiffs  pray  the  decree  of  this  court 
construing  and  interpreting  said  will  in  the  particulars 
herein  set  forth,  and  for  such  other  relief  as  may  be  just  and 
equitable. 

1798.  By  stockholder  against  business  corporation  and 

its  directors  for  misconduct  of  directors. 

I.  [Allege  corporate  character  and  business  of  defendant 
corporation.] 

II.  [Allege  election  of  the  defendant  directors  and  that  they 
assumed  the  duties  of  directors  and  are  still  such.] 

III.  [Allege  the  duties  of  directors  as  for  instance]:  That 
it  was  the  duty  of  the  said  defendants  as  such  directors, 
honestly,  diligently  and  carefully  to  administer  the  affairs  of 
said  corporation;  to  employ  none  but  honest  and  competent 


Form  1798.]  1348  [Chapter  LXXXII. 

persons  to  serve  as  officers,  agents  and  servants  of  said  cor- 
poration, and  to  take  from  all  persons  so  employed  sufficient 
security  for  the  faithful  performance  of  their  duties;  to  keep 
honest,  accurate  and  correct  books  of  account  of  all  the  af- 
fairs, business  and  transactions  of  the  said  company;  to  see 
that  the  property  and  effects  of  the  said  company  were  not 
wasted,  stolen  or  squandered;  to  make  and  publish  true  and 
accurate  accounts  and  statements  of  the  affairs  of  the  said 
corporation  from  time  to  time  as  required  by  statute,  and 
to  faithfully  and  diligently  perform  all  other  duties  devolv- 
ing upon  them  as  directors  of  said  company. 

IV.  [Allege  in  what  manner  the  directors  failed  to  perform 
their  duties,  as  for  instance] :  That  the  said  defendants,  as 
directors  as  aforesaid,  utterly  failed  and  neglected  to  perform 
their  official  duties  as  such  directors,  as  follows:  They  did 
not  give  their  care  or  oversight  to  the  business  and  affairs  of 
said  company,  but  utterly  neglected  the  same;  they  did  not 
administer  the  affairs  of  the  said  company  in  an  honest, 
careful  or  prudent  manner,  but,  on  the  contrary,  they  neg- 
ligently suffered  and  permitted  the  money,  property  and 
effects  of  the  said  company  to  be  stolen,  wasted  and  squan- 
dered; they  negligently  suffered  and  permitted  the  moneys 
of  the  said  corporation  to  be  loaned  to  irresponsible  persons 
and  corporations  without  adequate  security,  by  means 
whereof  the  said  moneys  were  lost  by  said  corporation. 

V.  [Allege  the  results  of  the  directors'  mismanagement  as 
for  instance] :  That  said  directors  so  negligently  and  carelessly 
conducted  the  said  company  and  the  business  and  affairs 
thereof,  that  the  entire  capital,  surplus,  property  and  effects 
of  the  said  company  were  lost  and  the  stock  of  the  said  com- 
pany rendered  worthless,  and  the  stockholders  of  the  said 
bank  rendered  liable  for  a  large  and  considerable  sum  of 
money  on  account  of  the  debts  of  the  said  company  re- 
maining unpaid. 

VI.  That  before  the  commencement  of  this  action  the 
plaintiff  requested  and  demanded  of  the  said  defendant  cor- 
poration, through  its  officers,  that  it  should  commence  and 
prosecute  an  action  against  the  aforesaid  directors  of  the 

Company  to  recover  against  them  the  damages  which 

the  said  corporation  or  the  stockholders  thereof  have  sus- 
tained by  reason  of  the  negligence  and  official  misconduct  of 
the  said  directors;  that  the  said  defendant  corporation  neg- 


Chapter  LXXXIL]  1349  [Form  1799. 

lected  and  refused  to  commence  such  action,  or  any  action, 
against  the  said  directors,  or  any  or  either  of  them. 

VII.  That  this  action  is  commenced  and  prosecuted  by 
this  plaintiff  on  his  own  behalf,  and  on  behalf  and  for  the 
benefit  of  all  the  other  stockholders  of  said  company, 

WHEREFORE  the  plaintiff  demands  judgment  that  the 
damages  sustained  by  said  corporation  by  reason  of  the 
premises  be  determined,  and  that  the  defendants  [naming 
the  directors]  be  adjudged  to  pay  said  sum  to  the  defendant 
corporation  and  that  such  further  judgment  be  rendered 
herein  as  may  be  just  and  equitable. 

[For  form  of  complaint  by  minority  stockholders  suing  on 
behalf  of  the  corporation  to  collect  sums  due  the  corporation 
which  the  directors  refuse  to  collect,  see  Just.  vs.  Idaho  Canal 
16  Idaho  639;    102  Pac.  381.] 

1799.  Complaint  by  receiver  of  foreign  mutual  insur- 
ance company  to  recover  an  assessment  on  pre- 
mium note. 

I.  [Allege  corporate  character  and  business  of  the  foreign 
insurance  corporation  and  its  authority  under  the  law  to  trans- 
ac  la  fire  insurance  business  on  the  mutual  plan  and  to  accept 
from  the  insured  premium  notes.] 

II.  [Allege  that  by  the  laws  of  the  state  in  which  the  insur- 
ance company  was  incorporated  all  persons  insured  become 
members  of  the  company  and  are  legally  bound  to  pay  for  losses 
and  necessary  expenses  in  proportion  to  the  original  amount 
of  the  premium  note  given.] 

III.  [Allege  that  by  the  laws  of  said  state  the  company  is 
permitted  to  do  insurance  business  and  issue  policies  in  other 
states,  and  also  that  the  said  company  complied  with  the  laws 
of  the  state  when  the  action  is  brought  relating  to  its  admission 
to  do  business  in  that  state,  giving  the  date  of  such  compliance.] 

IV.  That  thereafter,  to-wit,  on  the day  of , 

19. .,  the  above  named  defendant  made  application  in  writ- 
ing to  become  a  member  of  said  insurance  company,  and  for 

certain  insurance  upon  its  property  situated  at   ,  in 

county,  Wisconsin;  that  said  application  was  accepted 

by  said  insurance  company,  and  it  thereupon  issued  to  the 
defendant  its  certain  insurance  policy  dated  said  day,  signed 
by  its  president  and  secretary,  sealed  with  its  seal,  and  coun- 


Form  1799.]  1350  [Chapter  LXXXII. 

tersigned  by  its  authorized  state  agents,  numbered  ...., 
insuring  the  said  defendant  against  loss  or  damage  by  fire  and 
lightning  of  and  to  the  property  therein  described,  and  de- 
livered the  same  to  the  defendant. 

V.  That,  thereupon,  at  the  same  time,  in  consideration  of 
such  policy,  the  said  defendant  made,  executed  and  de- 
livered to  the  said  [name  insurance  company]  its  certain  pre- 
mium note,  dated  the  ....  day  of ,  19 . .,  whereby  the 

said  defendant  promised  to  pay  to  said  insurance  company 
the  sum  of  five  hundred  dollars,  by  such  installments  and  at 
such  times  as  the  directors  of  said  company  should  assess 
and  order,  pursuant  to  the  charter  and  by-laws  of  the  said 
company,  and  it  was  expressly  agreed  therein  that  said  note 
should  not  be  transferable  and  that  defendant's  liability 
thereon  should  only  be  for  the  losses  and  expenses  incurred 
by  the  said  insurance  company  and  should  not  extend  beyond 
the  face  amount  thereof,  a  copy  of  which  said  note  is  hereto 
attached  marked  Exhibit  "A"  and  made  part  of  this  com- 
plaint. 

VI.  That  during  the  life  of  said  policy  of  insurance  and 
while  said  defendant  was  a  member  of  said  insurance  com- 
pany losses  and  expenses  were  incurred  by  said  insurance 
company  to  a  large  amount;  that  the  just  proportion  of  the 
same  chargeable  to  the  defendant  under  the  provisions  of 
said  note  and  agreemxcnt  exceeded  the  amount  of  said 
premium  note,  and  that  the  directors  thereupon  duly  levied 

certain  assessments  on  said  note  to  the  amount  of 

dollars,  which  the  defendant  has  paid. 

VII.  [Allege  the  bringing  of  the  action  in  the  foreign  state 
in  which  the  plaintiff  was  appointed  receiver  and  allege  such 
appointment  and  qualification  and  plaintiff's  entry  in  the 
discharge  of  his  duties.] 

VIII.  That  thereafter  said  policy  of  insurance  issued  to 
defendant  was  canceled,  pursuant  to  the  laws  of  the  said 
state  of ,  and  said  defendant  notified  thereof. 

IX.  That  on  the day  of ,  19.  .,  the  plaintiff 

as  such  receiver  in  conformity  with  his  duty  under  said 
judgment  and  as  prescribed  by  the  laws  of  said  state,  duly 

filed  in  said court  a  report  of  the  assets  and  Habilities 

of  said  [name  insurance  company],  which  he  had  duly  ascer- 
tained; and  that  it  was  then  necessary  to  pay  the  just  losses 
and  expenses  of  said  [insurance  company]  and  the  expenses 


Chapter  LXXXIL]  1351  [Form  1709. 

of  winding  up  its  affairs,  to  assess  upon  the  premium  notes 
thereof  held  by  said  company  at  the  time  of  the  dissolution 
thereof,  and  by  this  plaintiff  as  receiver  thereafter,  the  whole 
amount  not  previously  assessed  thereupon,  up  to  their  face 
value. 

X.  That  said  court  upon  hearing  said  report  and  filing 
the  same,  by  its  order  duly  made  and  entered  of  record, 
duly  ordered  and  required  the  plaintiff  to  make  an  assess- 
ment upon  the  deposit  notes,  premium  notes  and  contingent 
liabilities  due  said  [insurance  company]  sufficient  to  meet  the 
actual  habilities  of  said  [insurance  company]  and  the  reason- 
able expenses  of  winding  up  its  affairs. 

XI.  That  the  said  court  further  by  said  order  directed 
and  required  the  plaintiff  to  collect  the  amounts  so  assessed, 
and  to  institute  and  prosecute  all  actions  and  proceedings  in 
law  or  equity  that  might  be  necessary  to  collect  the  same. 

XII.  [Allege  that  by  the  laws  of  said  state  the  receiver  suc- 
ceeds to  the  property  of  the  company  and  is  empowered  to 
make  assessments  on  premium  notes  and  collect  the  same  by 
action.] 

XIII.  That  by  the  laws  of  said  state  and  the  judgment  of 
said  court,  the  said  note  given  by  the  defendant  as  herein- 
before set  forth  passed  among  others  to  this  defendant  by 
operation  of  law  as  fully  as  if  the  same  had  been  assigned. 

XIV.  That  at  the  time  the  said  premium  note  passed  to 
the  plaintiff  as  receiver  as  aforesaid,  there  was  and  still  re- 
mains unpaid  thereon  the  sum  of dollars. 

XV.  That  in  pursuance  of  the  aforesaid  order  the  plain- 
tiff duly  levied  an  assessment  upon  all  the  premium  notes 
not  previously  assessed  up  to  their  face  value  and  levied  and 
assessed  upon  the  said  note  so  given  by  the  defendant  as 

aforesaid  the  sum  of dollars,  the  same  being  the  full 

amount  thereof  not  previously  assessed,  and  on  the   .... 

day  of   ,  19.  .,  duly  notified  said  defendant  of  such 

assessment,  by  mailing  a  written  notice  of  the  same  addressed 

to  him  at in  said  state  of ,  the  same  being  his 

postoffice  address,  duly  postpaid;  such  notice  being  given  in 
the  substance  and  manner  prescribed  by  and  made  sufficient 
by  the  laws  of  said  state  and  the  by-laws  of  said  corporation 
and  the  terms  of  said  agreement  of  insurance  above  set  forth; 
which  said  notice  required  him  to  pay  the  amount  so  assessed 
within  thirty  days  from  the  date  thereof. 


Form  1800.]  1352  [Chapter  LXXXII. 

XVI.  That  said  amount  so  assessed  is  no  more  than  the 
just  proportion  of  the  losses  and  expenses  incurred  by  said 
company  during  the  Ufe  of  said  poUcy,  justly  chargeable  to 
the  defendant;  and  that  the  same  has  not  been  paid,  though 
more  than  thirty  days  have  elapsed  since  such  notice  was 
given,  and  to  pay  the  same  or  any  part  thereof  the  defendant 
has  refused  and  still  refuses. 

WHEREFORE  the  plaintiff,  as  such  receiver  demands 

judgment   against   the   defendant   for  the   sum   of    

dollars,  with  interest  thereon  since   ,  19..,  together 

■with  the  costs  and  disbursements  of  this  action. 


1800.  Complaint  under  mill  dam  act  by  land  owner 
whose  lands  are  flowed  (Wis.  Stats.  1913  sec. 
3378  et  seq.). 

I.  [Allege  plaintiff' s  ownership  of  the  lands  flowed  giving 
description  of  the  same.] 

II.  [Allege  the  existence  of  a  non-navigable  stream  running 
through  the  premises.] 

III.  That  during  the  month  of  19..  the  de- 
fendant without  the  consent  of  or  authority  from  the  plain- 
tiff, or  any  one  with  power  to  give  the  same,  erected  and  has 

ever  since  maintained  a  dam  across  said  stream,  about 

below  the  said  premises  of  the  plaintiff,  and  of  a  great  height, 
to-wit  [state  height];  that  said  dam  was  so  erected  and  is  so 
maintained  to  raise  water  for  the  purpose  of  producing  power 
to  run  and  work  a  water  mill,  namely,  a  flour  mill  [or,  specify 
the  kind  of  mill];  that  the  lands  under  and  adjoining  said 
mill  and  mill  dam  and  used  therewith  are  described  as  fol- 
lows: [describe  same]:  that  by  means  of  said  dam  since  said 
last  mentioned  date,  the  defendant  has  obstructed  the 
natural  flow  of  said  water  and  dammed  up  said  stream,  and 
without  grant  or  consent  from  the  plaintiff,  caused  the  waters 
of  said  stream  to  set  back  upon  and  overflow  the  plaintiff's 
said  land  and  over  a  large  part  of  the  premises  above 
described. 

IV.  That  the  lands  so  overflowed  by  the  raising  and  main- 
tenance of  said  dam,  at  the  ordinary  stage  in  the  pond  caused 
by  said  dam,  are  the  following:  [Here  describe  accurately, 
the  lands  overflowed.] 


Chapter  LXXXIL]  1353  [Form  1801. 

V.  That  the  plaintiff  is  thereby  deprived  of  all  beneficial 
use  of  said  land  and  of  the  crops  of  hay,  grain  and  vegetables, 
and  pasturage  that  might  otherwise  be  raised  and  had  there- 
on; [here  allege  fully  what  the  effect  of  the  flowage  is],  and  that 
the  portions  of  said  premises  not  actually  covered  with  water 
by  said  overflowing  are  otherwise  specially  injured  as  follows, 
to-wit:  [here  specify  full  particulars  of  such  injury.] 

VI.  That  the  damages  to  the  plaintiff's  land  so  overflowed 
are  the  sum  of dollars;  and  to  his  other  lands  not  over- 
flowed but  otherwise  injured,  are  the  sum  of dollars, 

VII.  That  said  dam  is  kept  up  and  closed  without  neces- 
sity, during  the  whole  year  at  an  unreasonable  height.  [  Here 
state  facts  showing  such  to  be  the  case.] 

WHEREFORE,    the    plaintiff    demands    judgment    for 

dollars,  the  damages  he  has  sustained  as  aforesaid 

by  reason  of  the  premises,  from  the   ....   day  of   , 

19.  .,  until  the  rendering  of  the  verdict  in  this  action,  and 
further  that  if  the  defendant  is  allowed  to  keep  up  and  main- 
tain said  dam  at  its  present  height,  then  that  the  plaintiff 
have  as  annual  compensation  such  sum  as  shall  be  just  and 
reasonable  for  the  damages  that  shall  thereby  be  hereafter 
sustained  by  the  plaintiff,  or  such  sum  in  gross  as  may  be  a 
just  and  reasonable  compensation  for  the  damages  as  will 
after  such  verdict  be  occasioned  by  said  dam  so  long  as  used 
in  conformity  with  the  verdict  that  may  be  rendered  herein. 

Plaintiff  further  demands  that  the  facts  may  be  deter- 
mined as  to  the  reasonableness  of  the  height  of  said  dam  and 
as  to  the  time  during  the  year  when  such  height  should  not 
be  maintained,  and  for  his  costs. 

1801.    Complaint  in  action  to  condemn  land  for  public 
use  by  municipal  corporation.^' 

I.     That  the  name  of  the  plaintiff  in  charge  of  the  public 

use  hereinafter  named  is  the  county  [or  city]  of in  the 

state  of and  that  the  plaintiff  is  a  municipal  corpora- 

2  This  and  the  immediately  fol-  7592;  Utah  Comp.  Laws  1907  sec. 

lowing  form  may  be  used  in  Cali-  3594.      In    Idaho    there    must    be 

fornia,    Arizona,    Montana,    North  added   (in  case   the  owner  of  the 

Dakota,  and  Utah.     Cal.  C.  C.  P.  lands  resides  in  the  same  county)  a 

1906  sec.  1244;  Ariz.  R.  S.  191.3  sec.  statement    that    the    plaintiff    has 

3082;  Mont.  Rev.  Codes  1907  sec.  sought  in  good  faith  to  purchase  the 

7337;  N.  Dak.  Rev.  Codes  1905  sec.  lands   sought  to   be   taken,    or  to 


Form  1802.]  1354  [Chapter  LXXXII. 

tion  duly  created  and  existing  under  the  laws  of  said  state. 

II.  That  A..,.  B....  the  defendant  named  in  this 
action  is  the  sole  owner  and  claimant  of  the  property  sought 
to  be  condemned  herein,  to-wit,  [describe  property].  [Or 
allege  that  the  names  of  the  owners  are  unknown.] 

III.  That  on  the  ....  day  of ,  19. .,  the  board  of 

supervisors  of  said  county  [or  otherwise  state  the  governing 
body  of  the  corporation  according  to  the  fact],  by  its  order  duly 
made  for  that  purpose,  authorized  the  building  of  an  exten- 
sion to  the  county  court  house  [or  otherwise  state  the  public 
use]  and  directed  that  the  district  attorney  of  said  county 
institute  condemnation  proceedings  to  obtain  title  to  the 
lands  above  described  for  the  purpose  of  building  said  ex- 
tension  thereon. 

IV.  That  said  lands  and  the  whole  thereof  are  necessary 
for  the  public  use,  namely,  for  the  erection  of  said  extension 
to  the  county  court  house  thereon. 

V.  That  the  said  county  board  [or  city  council]  on  the 
....   day  of   ,  19. .   awarded  to  the  said  [name  de- 
fendant] as  the  purchase  price  of  said  lands  the  sum  of 

dollars  which  plaintiff  alleges  to  be  the  reasonable  value  of 
said  land,  but  the  said  defendant  has  refused  and  now  re- 
fuses to  accept  said  amount  so  awarded  and  refuses  to  grant 
title  of  said  lands  for  said  public  use. 

WHEREFORE  plaintiff  prays  that  said  land  be  con- 
demned for  said  public  use,  to-wit,  [describe  same],  that  the 
damages  of  the  defendant  be  assessed  for  the  taking  of  said 
lands  and  for  such  other  and  further  relief  as  may  be  just. 

1802.    The  same  by  railroad  corporation. 

I.  [Allege  the  corporate  character  and  name  of  the  plaintiff.] 

II.  [Allege  the  purpose  and  business  of  the  plaintiff, 
showing  that  its  purpose  is  to  construct  a  railroad  or  an  exten- 
sion of  an  existing  line,  and  the  general  direction  thereof  and 

settle    with    the    owner    for    the  be   found   in   the   following  cases, 

damages  which  might  result  to  his  Trester  v.  M.  P.  Ry.  Co.  33  Neb. 

property  from  the  taking  thereof,  171,  49  N.  W.  1110;  St.  L.  Ry.  Co. 

and  was  unable  to  make  any  reason-  v.  Lewright  113  Mo.  660,  21  S.  W. 

able  bargain  therefor  or  settlement  210;  K.  C.  etc.  Ry.  Co.  v.  Stony  96 

of    such    damages.      Idaho    Rev.  Mo.   611,   10  S.  W.   320;   City  v. 

Codes  1908  sec.  5216.  Houck  129  Mo.  607,  31  S.  W.  933. 

In  most  of  the  states  the  pro-  See  also  Chapter  CLXV  post, 
ceeding  is  by  petition.    Forms  may 


Chapter  LXXXIL]  1355  [Forms  1803,  1804. 

terminal  points,  also  that  the  road  has  been  surveyed  end  defi- 
nitely located  over  the  land  sought  to  be  condemned.] 

III.  [Describe  with  particularity  the  location  of  the  pro- 
posed road  or  extension,  attaching  an  exact  map  thereof.] 

IV.  [Describe  with  accuracy  every  tract  of  land  sought  to 
be  taken  and  whether  the  same  includes  the  whole  or  only  a 
part  of  an  entire  tract,  also  state  the  claimed  ownership  of  each 
tract  showing  that  the  defendants  are  such  claimants.  If  the 
ownership  of  any  parcel  is  unknown,  state  the  fact  and  pray 
that  when  the  names  of  such  unknown  owners  are  discovered 
they  may  be  inserted  by  amendment.] 

V.  [Allege  that  it  is  necessary  for  the  public  use  that  the 
lands  be  taken  for  railroad  purposes,  that  none  of  it  has  pre- 
viously been  appropriated  for  any  public  use,  and  that  the 
plaintiff's  railroad  has  been  located  in  the  manner  which  will 
be  most  compatible  with  the  public  good  and  work  the  least 
private  injury.] 

WHEREFORE  [Prayer  for  Judgment  that  the  damages  be 
ascertained  including  the  value  of  the  land  actually  taken,  the 
improvements  and  the  damages  to  the  remainder  of  the  parcels 
not  actually  taken,  that  the  benefit  to  the  remainder  be  ascer- 
tained and  deducted  from  the  damages,  that  the  cost  of  neces- 
sary fences  and  cattle  guards  be  ascertained  and  that  judgment 
of  condemnation  be  entered,  etc,\ 


1803.  To  enjoin  members  of  a  labor  union  from  con- 

spiracy to  boycott  and  from  picketing. 

[See  complaint  sustained  and  reported  in  substance  in  Gold- 
berg vs.  Stablemen,  149  Cal.  429,  86  Pac.  806.] 

[See  also  complaint  sustained  and  reported  in  substance  in 
Crescent  F.  Co.  vs.   Union,  153  Cal.  433,  95  Pac.  871.] 

1804.  By  riparian  owner  of  lands  in  various  counties  to 

restrain  diversion  of  waters  of  a  river  flowing 
through  the  lands,  and  to  recover  damages  for 
past  diversions. 

[See  complaint  reported  in  substance  in  Miller  vs.  Madera 
I.  Co.,  155  Cal.  59,  99  Pac.  502.] 


Forms  1805-1809.]  1356  [Chapter  LXXXII. 

1805.  To  restrain  diversion  of  sn^iace  and  percolating 

waters,  resulting  in  damage  to  plaintiff's  or- 
chard. 

[See  complaint  and  findings  of  court  in  Miller  v.  Bay  Cities 
W.  Co.,  Cal.  107  Pac.  115.] 

1806.  To  establish  right  to  the  use  of  pipe  line  for  irri- 

gating purposes  across  defendant's  land  and  en- 
join interference  therewith. 

[See  complaint  reported  in  substance  in  Collins  vs.  Gray, 
154  Cal.  131,  97  Pac.  142.] 

1807.  Complaint  in  equity  by  owner  of  land  to  restrain 

defendants  from  damming  a  river,  digging  irri- 
gating ditches,  and  trespassing  on  plaintiff's 
lands. 

[See  complaint  sustained  and  reported  in  full  in  Wadding- 
ham  vs.  Robledo  6  New  Mex.  347,  28  Pac.  663.] 

1808.  Complaint  by  married  woman  as  a  sole  trader.' 

I.  [Allege  marriage.] 

II.  That  on  the  ....  day  of ,  19. .,  by  a  decree  of 

the court  of county  in  this  state  duly  given, 

the  plaintiff  was  decreed  to  be  a  sole  trader,  and  that  at  the 
times  hereinafter  mentioned  she  was  and  still  is  such  sole 
trader,  carrying  on  business  as  a at 

III.  [Set  out  cause  of  action  arising  out  of  the  business, 
as  if  the  suit  were  brought  by  a  man,  being  careful  to  plainly 
and  unmistakably  allege  that  the  contract  is  chose  in  action 
was  acquired  by  the  plaintiff  in  her  business  as  a  sole  trader 
and  still  remains  her  sole  and  separate  property.] 

WHEREFORE,  etc. 

1809.  Complaint  in  action  against  a  married  woman  as 

sole  trader. 

I.  That  the  defendant  is  the  wife  of  one  E. . . .  F. . . . 

II.  [Allege  the  decree  authorizing  the  defendant  to  do  busi- 

»  Cal.  C.  C.  P.  1906  sec.  1813  et  5850  et  seq;  Mont.  Rev.  Codes  1907 
seq.    Idaho   Rev.    Codes    1908   sec.       sec.  7375  et  seq. 


Chapter  LXXXIL]  1357  [Form  1810. 

ness  as  a  sole  trader  substantially  as  in  paragraph  II  of  last 
preceding  form.] 

III.  [Set  out  the  cause  of  action  as  if  the  action  were  against 
a  man,  showing,  however,  the  fact  that  the  cause  of  action  arose 
out  of  the  business  in  which  defendant  was  engaged  as  a  sole 
trader.] 

WHEREFORE,  etc. 


1810.  By  pledgor  of  goods,  to  obtain  an  accounting  and 
for  an  injunction  restraining  their  sale  (prece- 
dent in  Castoriano  v.  Dupe,  145  N.  Y.  250). 

I.  That  on  the  ....  day  of the  plaintiff  executed 

and  deUvered  to  the  defendant  a  bill  of  sale,  absolute  on  its 
face,  of  [describe  property],  as  collateral  security  for  an  in- 
debtedness then  owing  by  plaintiff  to  defendant,  the  amount 
of  which  debt  was  at  that  time  undetermined  and  still 
remains  undetermined,  but  plaintiff  alleges  that  it  does  not 
exceed dollars. 

II.  That  the  defendant  now  claims  the  absolute  owner- 
ship of  said  property  and  claims  that  the  amount  of  said 

indebtedness  exceeds    dollars,   and  plaintiff  alleges 

that  an  accounting  is  necessary  to  ascertain  the  true  amount 
of  the  debt  for  which  said  goods  are  pledged. 

III.  That  said  property  is  of  a  peculiar  character  [de- 
scribe it]  that  the  same  can  only  be  sold  to  comparatively 
few  customers  and  that  if  sold  at  auction  it  would  be  sacri- 
ficed and  would  produce  far  less  than  its  real  value. 

IV.  That  the  plaintiff  on  the  ....  day  of ,  19. ., 

tendered  to  the  defendant    dollars  to  redeem  said 

property,  which  sum  fully  covers  said  indebtedness,  and  has 
kept  said  tender  good  and  now  offers  to  bring  said  money  into 
court  for  the  defendant's  benefit  as  the  court  shall  order. 
That  the  defendant  refused  to  accept  said  tender  and  has 
advertised  said  property  for  sale  and  threatens  to  sell  the 
same  at  auction  to  the  lowest  bidder,  on  the  ....  day  of 
,19.. 

V.  That  plaintiff  is  ready  and  willing  to  pay  defendant 
whatever  sum  may  be  adjudged  due  to  him  upon  an  ac- 
counting upon  said  indebtedness,  and  that  he  has  no  ade- 
quate remedy  at  law. 


Forms  1811,  1812.]  1358  [Chapter  LXXXII. 

WHEREFORE  [demand  for  judgment  that  the  bill  of  sale 
be  declared  a  collateral  mortgage;  that  an  accounting  be  had 
that  upon  payment  of  the  amount  found  due  the  defendant 
restore  the  goods,  and  that  he  be  enjoined  from  selling  the 
same,  etc.] 

1811.  For  forcible  entry  and  unlawful  detainer  (Cal.  0. 

C.  P.  1906  sec.  1159).* 

I.  That  at  the  times  hereinafter  named  the  plaintiff  was 
in  lawful  possession  of  [describe  premises],  and  of  the  dwelling 
house  [or  other  buildings  describing  same]  thereon. 

II.  That  on  the  ....  day  of ,  19. .  the  defendant 

forcibly  entered  on  said  premises  and  ejected  the  plaintiff 
from  said  house  and  premises  [if  property  damage  was  com- 
mitted state  what]  to  the  plaintiff's  damage  in  the  sum  of 

dollars.     [If  the  entry  was  peaceful,  vary  the  foregoing 

allegation  to  suit  that  fact,  and  allege  that  after  such  entry 
the  defendant  forcibly  ejected  the  plaintiff,  or  if  the  ejection  was 
by  threats  state  the  facts.] 

III.  That  the  defendant  unlawfully  withholds  from 
plaintiff  the  possession  of  said  premises,  and  has  so  held 
possession  of  the  same  at  all  times  since  the  said  ....  day  of 

,   19..     [If  the  detainer  is  forcible  or  by  threats  of 

violence  vary  the  allegation  by  so  charging  the  fact.] 

IV.  That  by  reason  of  the  premises  the  plaintiff  has  been 
deprived  of  the  rents,  issues  and  profits  of  said  premises 

from   ,  19 . .   to   ,  19 . .   amounting  to   

dollars.  [If  damage  has  been  suffered  by  injury  to  property,  or 
otherwise,  allege  the  facts  and  the  amount  of  damage  resulting.] 

WHEREFORE,  etc. 

1812.  For  forcible  detainer  (Cal.  C.  C.  P.  1906  sec.  1160). 
I.     [Allege    that    plaintiff    was    actually    and    peaceably 

in  possession  and  lawfully  entitled  to  the  possession  of  the 
premises,  describing  them,  at  the  time  hereinafter  mentioned 
and  for  fwe  days  previous  thereto.] 

*  In  most  of  the  code  states  ac-  some  other  states  which  have  fol- 

tions  of  unlawful  detainer  must  first  lowed  her  lead,  the  action  may  be 

be  brought  in  justice  court,  and  as  brought  in  some  of  the  higher  courts 

this  work  is  not  intended  to  include  and  this  form  and  the  two  succeed- 

forms  for  that  court  no  attempt  is  ing    forms    are    inserted    for    that 

here  made  to  fully  cover  the  sub-  reason, 
ject.     In  California,  however,  and 


Chapter  LXXXIL]  1359  [Form  1813. 

II.  That  the  defendant  took  possession  of  said  premises 

on  the  ....  day  of ,  19 . .  and  from  that  time  until  the 

present  has  maintained  and  still  maintains  such  possession 
by  force  and  with  a  strong  hand,  [or  by  menaces  and  threat 
of  violence  against  the  plaintiff  and  his  agent.]  [//  the 
defendant  took  possession  in  the  night  time,  or  during  plaintiff's 
absence,  allege  that  fact;  in  such  case  it  is  not  necessary  to 
allege  forcible  holding  or  threats  of  violence  but  there  must  be 
added  an  allegation  of  a  five  day  demand  for  possession  as 
follows]: 

III.  That  on  the day  of ,  19. .  at the 

plaintiff  made  a  written  demand  on  the  defendant  to  sur- 
render possession  of  said  premises,  but  the  defendant  re- 
fused for  the  period  of  five  days  thereafter  and  still  refuses 
to  surrender  such  possession  but  on  the  contrary  still  remains 
in  possession  thereof. 

IV.  That  by  reason  of  the  premises  the  plaintiff  has 
been  deprived  of  the  rents,  issues  and  profits  of  said  premises 
to  his  damage dollars  [if  other  damage  has  been  suf- 
fered state  it], 

WHEREFORE,  etc. 

1813.    For  unlawful  detainer  holding  over  after  rent  due 
(Cal.  CO.  P.  1906  sec.  1161). 

I.  [Allege  the  making  of  the  lease,  its  terms  and  that  de- 
fendant went  into  possession  and  still  holds  possession  under  it, 
attaching  a  copy  if  desired.] 

II.  [Set  forth  the  payments  of  rent  which  are  due  and 
unpaid  their  amount  and  exact  dates  due.] 

III.  That  on  the day  of 19. .  and  within 

one  year  after  said  rent  became  due,  as  aforesaid,  the  plaintiff 
made  demand  in  writing  upon  the  defendant  that  he  pay 
said  rent  or  surrender  possession  of  said  premises  within 
three  days  thereafter,  but  said  defendant  neglected  and  re- 
fused and  has  for  the  space  of days  neglected  and 

refused  to  deliver  up  possession  of  said  premises  or  to  pay 
said  rent,  and  that  said  rent  still  remains  due  and  unpaid; 
that  a  copy  of  said  demand  is  hereto  annexed  and  made 
part  of  this  complaint. 

IV.  That  said  defendant  still  withholds  possession  of 
said  premises  without  payment  of  rent  and  without  the 


Form  1814.]  1360  [Chapter  LXXXII. 

plaintiff's  permission,   to  the  plaintiff's  damage    

dollars. 

WHEREFORE  plaintiff  demands  judgment  for  the  resti- 
tution of  said  premises,  for  the  sum  of dollars  rent 

due  as  aforesaid,  also  for  the  sum  of dollars  for  waste 

and  for  the  detention  of  said  premises,  and  that  said  damages 
and  rent  money  be  trebled,  and  for  costs. 

1814.    Complaint  in  unlawful  detainer   (Ark.  Dig.  of 
Stats.  1904  sec.  3634). 

[Title.] 

Now  comes  the  plaintiff  A. . . .  B . . . .  and  states: 

I.  That  he  is  the  owner  and  lawfully  entitled  to  the  im- 
mediate possession  of  the  following  described  real  estate 
[describe  same]  and  the  improvements  thereon. 

II.  [//  the  defendant  be  a  tenant  holding  after  non-payment 
of  rent.]   That  defendant  enteied  into  possession  of  same  on 

the  ....  day  of 19 .  . ,  under  an  agreement  to  pay  as 

rent  therefor  the  sum  of dollars  per  month,  and  is 

still  in  possession  thereof.  That  defendant  failed  and  neg- 
lected to  pay  the  rent  due   on    the    ....   day  of   , 

19. .,  to-wit  the  sum  of dollars,  and  still  refuses  and 

neglects  to  pay  the  same  although  three  days'  notice  to  quit 
and  demand  for  the  surrender  of  the  possession  of  said  prem- 
ises has  been  made  in  writing  by  the  plaintiff  [or  his  agents 
naming  them],  copies  of  which  notice  and  demand  are  at- 
tached hereto  marked  Exhibit  A.  That  the  defendant  has 
refused  and  neglected  to  surrender  possession  of  said  prem- 
ises notwithstanding  the  service  of  the  aforesaid  notice 
upon  him  but  still  holds  the  same  and  unlawfully  detains 
the  same  from  the  plaintiff. 

[//  the  entry  or  detention  was  forcible  the  immediately 
preceding  forms  given  for  use  in  California  may  be  consulted 
for  the  proper  allegations.] 

III.  That  the  defendant  is  indebted  to  the  plaintiff  in 

the  sum  of dollars  for  rent  due  and  unpaid  and  that 

plaintiff  has  been  damaged  by  defendant's  unlawful  deten- 
tion of  said  premises  in  the  sum  of dollars. 


Chapter  LXXXIL]  1361  [Forms  1815,  1816. 

WHEREFORE  the  plaintiff  prays  judgment  for  the  pos- 
session of  said  property,  and  that  he  recover  from  the  de- 
fendant the  sum  of dollars  as  rent  and  damages  for 

unlawful  detainer  thereof,  and  for  all  rents  and  such  further 
damage  as  may  accrue  pending  this  suit,  and  for  all  proper 
relief. 

Attorney  for  Plaintiff, 
L....M.... 

C . . . .  D . . . .  states  that  he  is  the  agent  of  A ... .  B . . . ., 
plaintiff,  and  that  the  facts  set  forth  in  the  foregoing  state- 
ment are  true  and  correct. 

L....  M.... 
[Jurat.] 

Affidavit. 

I,  E . . . .  F . . .  . ,  do  solemnly  swear  that  A . . . .  B . . . .  is 

lawfully  entitled  to  the  possession  of  [describe  premises]  now 
occupied  by  Y .  . .  .  Z . .  . .  the  defendant  herein,  and  that  he 
unlawfully  detains  the  same  after  lawful  demand  thereof, 
made  in  writing. 

E....  F.... 
[Jurat.] 


1815.  Complaint  by  receiver  of  insolvent  corporation  to 

recover  assessment  on  the  stock  against  one  who 
transferred  his  stock  to  an  insolvent  third  per- 
son. 

[See  complaint  sustained  and  reported  in  substance  in   N. 
W.  Trust  Co.  vs.  Bradbury,  112  Minn.  76;  127  N.  W.  386.] 

1816.  Complaint  by  assignee  in  bankruptcy  of  insolvent 

corporation  against  a  stockholder  who  has  with- 
drawn, to  recover  the  amount  received  from 
the  corporation  on  such  withdrawal. 

[See  Preiss  vs.  Lins,  122  Minn.  441;  142  N.  W.  822.] 


Form  1817.]  1362  [Chapter  LXXXII. 

1817.  Complaint  by  corporation  employer  to  set  aside 
award  of  Industrial  commission  under  Work- 
men's Compensation  act  (Wis.  Stats.  1913  sec. 
2394-19;  N.  W.  Fuel  Co.  v.  Leipus,  161  Wis.—) 

I.  That  the  above  named  plaintiff,  and  the  above  named 
defendant,  Industrial  Commission  of  Wisconsin,  are  and 
each  of  them  is  a  corporation  duly  organized  and  existing 
under  and  by  virtue  of  the  laws  of  the  state  of  Wisconsin. 

II.  That  on 19. .,  the  above  named  defendant, 

C. . . .  D. . . .,  sustained  an  injury  to  his  left  arm  while  in 
the  employ  of  said  plaintiff;  and  that  on  said  date  said  plain- 
tiff and  said  C. . . .  D. . . .  were  subject  to  the  provisions  of 
sections  2394-3  to  2394-31  inclusive  of  the  Wisconsin 
statutes  known  as  the  Workman's  Compensation  Act. 

III.  That  on   ,   19,.,  said  defendant.  Industrial 

Commission,  made  and  filed  findings  of  fact  and  an  award, 
wherein  and  whereby  it  directed  that  said  plaintiff  pay  to 

said  defendant,  C . . . .  D . . . .  the  sum  of dollars  as 

compensation  for  said  injury,  in  addition  to  the  sum  of 
dollars  already  paid  by  said  plaintiff  to  said  defend- 
ant C. . . .  D. . . .  as  compensation  for  said  injury. 

IV.  That  among  other  things  said  Commission  found  (1) 
that  the  injury  sustained  by  said  defendant  C . . . .  D . . . . 
was  one  included  within  the  following  paragraph  of  subsec- 
tion 5  of  section  2394-9  of  said  act,  to-wit:  "In  all  other 
cases  in  this  class  the  compensation  shall  bear  such  relation 
to  the  amount  stated  in  the  above  schedule  as  the  disabilities, 
bear  to  those  produced  by  the  injuries  named  in  schedule"; 
and  (2)  that  said  injury  entitled  said  C. . .  D. . .  to  the  compen- 
sation provided  by  said  act  under  the  schedule  of  fixed  bene- 
fits contained  in  said  sub-section  5  of  section  2394-9  thereof. 

V.  That  said  Commission  determined  that  the  compen- 
sation so  payable  as  a  fixed  benefit  should  be  paid  in  addition 
to  the  amount  found  to  be  due  and  payable  on  account  of  the 
total  disability  caused  by  said  accident  and  in  addition  to 
said  amount  of dollars  already  paid  by  said  plaintiff. 

VI.  That  in  making  such  determination  said  Commission 
acted  without  and  in  excess  of  its  powers;  and  that  its  said 
findings  of  fact  do  not  support  said  award. 

WHEREFORE,  plaintiff  demands  judgment  that  said 
award  be  set  aside  and  that  plaintiff  have  such  other  and 
further  relief  as  to  the  Court  may  seem  just  and  proper. 


Chapter  LXXXII.]  1363  [Form  IS  18. 

1818.  The  same  (precedent  in  Milwaukee  C.  &  G.  Co.  v. 
Industrial  Commission  et  al.,  160  Wis.  247;  151 
N.  W.  245). 

I.  That  the  plaintiff  is  and  at  all  times  hereinafter  men- 
tioned was  a  corporation  duly  organized  and  existing  under 
and  by  virtue  of  the  laws  of  the  state  of  Wisconsin,  engaged 
in  the  manufacture  of  coke  and  the  by-products  thereof  and 
the  business  incidental  thereto  at  Milwaukee,  in  the  county 
of  Milwaukee,  and  state  of  Wisconsin. 

II.  That  the  defendant,  Industrial  Commission  of  Wis- 
consin, consisting  of  E . . . .  F . . . . ,  G . . .  .  H .  . .  . ,  and  J ,  . . . 
K. . . .,  is  charged  among  other  things  with  the  administra- 
tion of  the  provisions  of  Chapter  50,  Laws  of  W'isconsin, 
1911,  as  amended  by  Chapter  599,  Laws  of  Wisconsin,  1913, 
and  that  the  defendant  C . . . .  D .  ,  .  .  is  and  at  all  times 
hereinafter  mentioned  was  a  resident  of  the  city  of  Milwau- 
kee, county  of  Milwaukee  and  state  of  Wisconsin,  and  was 

on  the  15th  day  of  December,  1912,  the  wife  of  the  L 

D . . . .  hereinafter  mentioned. 

III.  That    heretofore,    to-wit,    on    ,    19..,    said 

plaintiff  had  in  its  employ  one  L. . . ,  D . . . .,  the  husband  of 
the  said  defendant,  C...  D....,  and  that  on  said  last 
mentioned  date  the  plaintiff  and  said  L . . . .  D . . . .  were 
both  under  and  subject  to  the  provisions  of  Chapter  50, 
Laws  of  Wisconsin,  1911. 

IV.  That  on  or  about  the  12th  day  of  September,  1913, 
said  defendant,  C . . . .  D . .  .  .  by  petition  duly  filed  with  the 
Industrial  Commission  alleged  among  other  things  that 
said  L. . . .  D.  . . .  had  sustained  a  personal  injury  at  the 
coke  plant  of  said  plaintiff  and  while  in  its  employ  on  the 

....   day  of   ,  19..;  that  thereafter,  to-wit,  on  the 

day  of ,  19 . . ,  said  L D died  as  a  result 

of  said  injuries  and  said  C...  D....  thereupon  in  said 
petition  made  application  for  compensation  under  the 
provisions  of   Chapter  50,   Laws  of  Wisconsin,   1911. 

V.  That  thereafter,  to-wit,  on  the  ....  day  of , 

19. .,  issue  having  been  joined,  a  hearing  of  said  application 
was  duly  held  in  the  City  of  Milwaukee  before  said  de- 
fendant,   Industrial    Commission   of   Wisconsin,    and   that 

thereafter,  to-wit,  on  the   ....  day  of  ,  19..,  said 

defendant,  Industrial  Commission  of  Wisconsin,  by  E.... 


Form  1819.]  1364  [Chapter  LXXXIL 

F....,  G....  H....  and  J. . . .  K. . . .,  commissioners,  duly 
made  and  filed  its  findings  of  fact  and  award  as  follows, 
to-wit:  [insert  copy]. 

VI.  Plaintiff  further  alleges  that  in  so  making  the  findings 
of  fact  as  aforesaid  said  defendant,  Industrial  Commission 
of  Wisconsin,  acting  by  and  through  said  commissioners, 
acted  without  or  in  excess  of  its  powers. 

VII.  Plaintiff  further  alleges  that  in  the  m^aking  and 
filing  of  its  award  as  aforesaid  the  defendant,  Industrial 
Commission  of  Wisconsin,  acting  by  and  through  said 
commissioners,  acted  without  or  in  excess  of  its  powers. 

VIII.  Plaintiff  further  alleges  that  the  findings  of  fact  so 
made  and  filed  by  said  defendant.  Industrial  Commission  of 
Wisconsin,  acting  by  and  through  said  commissioners,  as 
aforesaid,  do  not  support  the  award  and  order  made  in  favor 
of  said  defendant,   C...   D....,  as  aforesaid. 

WHEREFORE  the  plaintiff  demands  that  the  aforesaid 
order  and  award  be  reviewed  by  this  honorable  court  and 
that  the  same  be  set  aside  and  judgment  be  entered  in  favor 
of  the  plaintiiT,  and  that  such  other  and  further  relief  be 
accorded  said  plaintiff  as  to  the  court  may  seem  just  and 
proper,  together  with  the  costs  and  disbursements  of  this 
action. 

1819.  The  same,  by  municipal  corporation  (precedent  in 
Superior  v.  Industrial  Commission;  160  Wis. 
541;  152  N.W.  151). 

I.  That  the  plaintiff  is  a  municipal  corporation  and  city 
in county,  Wisconsin. 

II.  That  the  defendants  E F ,   G H 

and  J.  . . .  K. .  . .  are  and  constitute  the  Industrial  Commis- 
sion of  Wisconsin. 

III.  That  the  defendant  C . . . .  D . . . .  was,  in  a  hearing 

held  by  the  Industrial  Commission,  on  the  ....  day  of , 

19..   awarded  a  judgment  and  award  against  the  city  of 

,  dated ,  19. .,  in  the  sum  of dollars, 

with  direction  that  the  same  be  paid  by  the  city  within 
thirty  days. 

IV.  That  said  award  and  judgment  was  for  and  on  ac- 
count of  the  death  of  L. . . .  D . . . .,  the  husband  of  the  de- 
fendant C. . . .  D. . . .,  claimed  to  have  been  caused  by  and 


Chapter  LXXXIL]  1365  [Form  1819. 

the  result  of  an  accident  to  the  said  L. . . .  D claimed  to 

have  been  sustained  while  he  was  in  the  employ  of  and  work- 
ing for  the  city  of 

V.  The  plain tifT  alleges  the  fact  to  be  that  the  said  L. . . . 

D ,  if  he  was  injured  as  alleges,  was  not  in  the  lawful 

employment  of  or  legally  working  for  the  defendant  city  of 

,  and  that  such  injuries  and  death  were  not  sustained 

while  said  L . . . .  D . . . .  was  so  lawfully  employed  by  or 
performing  duties  or  services  under  his  employment  for  the 

city  of and  that  the  city  of was  not  in  any 

way  to  blame  or  liable  for  the  accident,  injury  or  damage  to 
him. 

VI.  Plaintiff  further  alleges  that  when  the  said  L.... 
D . . . . ,  who  was  mowing  private  lawns  in  the  street  in  front 
of  lots  of  private  individuals  and  without  the  knowledge  of  or 

authority  from  the  city  of or  any  officer  or  employee 

having  any  authority  to  so  employ  him  or  charge  the  city 
with  such  services  or  liability  for  injuries  sustained  while 
performtlng  such  services,  and  that  such  mowing  was  being 
done  not  only  without  any  authority  but  in  violation  of  the 

ordinances,  resolutions  and  regulations  of  the  city  of , 

and  that  the  work  done  was  not  work  of  or  for  the  city  of 

,  and  that  the  city  of was  not  liable  for  such 

services  or  responsible,  under  the  Industrial  Commission 
law  or  any  other  law,  for  the  acts  of  said  L. . . .  D . . . .  or 
any  accident  or  injury  that  might  happen  to  him  while  en- 
gaged in  the  work  he  was  performing  at  the  time  of  said 
alleged  accident. 

VII.  That  neither  the  city  of ,  nor  any  officer  or 

employee  of  the  city  had  any  authority  to  employ  said  L . . . . 
D . . . .  to  do  such  work  or  to  make  the  city  Hable  for  the 
accident  or  death  of  said  L. . . .  D . . . .,  and  that  the  award 
of  said  Industrial  Commission  was  and  is  excessive,  illegal 
and  unauthorized  by  law. 

WHEREFORE  plaintiff  demands  judgment  that  said 
award  be  reviewed,  vacated  and  set  aside. 


Form  1820.]  1366  [Chapter  LyXXII. 

1820.  Complaint  against  principal  and  agent  for  relief 
against  one  or  the  other  in  the  alternative  (Wis. 
Stats.  1913  sec.  2603  as  amended  by  Chap.  219 
Laws  1913)  (Conn.  Practice  Forms  No.  15). 

I.  That  on   ,  19..,  the  defendant  C...   D.... 

represented  to  the  plaintiff  that  he  was  authorized  by  the 
defendant  E. . . .  F. . . .  to  select  and  employ  an  editor  for  a 

newspaper   pubHshed   at    called   the    then 

owned  by  said  E . , . .  F . . . .  at  a  salary  of dollars 

and  thereupon  requested  the  plaintiff  to  accept  such  position 
at  said  salary,  for  the  year  beginning   19. . 

II.  That  the  plaintiff  believing  such  representations  to 
be  true  on  said  day  accepted  the  said  proposition. 

III.  That  on ,  19. .  the  plaintiff  went  to 

to  enter  upon  the  duties  of  said  position  when  the  defendant 

E . . . ,  F refused  to  permit  him  to  do  so  and  told  him  that 

said  C D . . . .  had  no  authority  from  him  to  make  such 

contract. 

IV.  That  the  plaintiff  was  then  and  at  all  times  during 
the  ensuing  year  ready  and  wilhng  to  fulfill  the  duties  of 
said  position. 

V.  That  by  reason  of  the  breach  of  the  said  contract  the 
said  plaintiff  has  been  damaged  in  the  sum  of dollars. 

WHEREFORE  the  plaintiff  demands  judgment  for  the 

sum  of damages  as  aforesaid  from  the  said  E . . . . 

F ,  or  in  case  it  be  shown  that  the  said  C . . . .  D in 

fact  acted  without  authority  from  said  E F . . . .  then 

he  claims  said  damages  from  the  said  C . . . .  D . . . . 


PART  III 

FORMS  OF  DEFENSES 


CHAPTER  LXXXin, 


'  DEMURRERS. 


1S21.  Outline  form  of  demurrer  to 
complaint. 

1822.  General    demurrer    to    com- 

plaint.  (Wisconsin.) 

1823.  Demurrw  for  want  of  juris- 

diction    of     the     person. 
(Wisconsin.) 

1824.  Demurrer  for  want  of  juris- 

diction    of     the     subject. 
(Wisconsin.) 

1825.  Demurrer  for  incapacity  to 

sue.     (Wisconsin.) 

1826.  For  pendency  of  another  ac- 

tion.    (Wisconsin.) 

1827.  For  defect  of  parties.    (Wis- 

consin.) 

1828.  Demurrer  for  misjoinder  of 

causes  of  action.      (Wis- 
consin.) 

1829.  Demurrer  based  on  statute  of 

limitations.    (Wisconsin.) 

1830.  Demurrer  to  defense  in 

answer.     (Wisconsin.) 

1831.  Demurrer   to    counterclaim. 

(Wisconsin.) 

1832.  Demurrer  to   reply.      (Wis- 

consin.) 

1833.  Demurrer  to   complaint  for 

insufficiency.  (Minnesota.) 


1834.  The  same,  another  form. 

1835.  Other    forms    of    demurrer. 

(Minnesota.) 

1836.  Demurrer     to     defense     in 

answer.     (Minnesota.) 

1837.  Demurrer   to    counterclaim. 

(Minnesota.) 

1838.  Demurrerto  petition.  (Iowa.) 

1839.  General  demurrer  to  petition 

in  equity.     (Iowa.) 

1840.  Demurrer     to     defense     in 

answer.     (Iowa.) 

1841.  Demurrer    to    counterclaim. 

(Iowa.) 

1842.  Demurrer  to  reply.     (Iowa.) 

1843.  Demurrer      to       complaint. 

(North  Dakota  and  South 
Dakota ) 

1844.  Demurrer  to  answer.   (North 

Dakota  and  South  Dako- 
ta.) 

1845.  Demurrer       to       petition. 

(Nebraska.) 

1846.  Demurrer     to     defense     in 

answer.     (Nebraska.) 

1847.  Demurrer  to  counterclaim  or 

set-off.     (Nebraska.) 


The  demurrer  is  simply  a  challenge  to  the  legal  sufTiciency 
of  the  pleading  to  which  it  is  addressed.  At  common  law  a 
demurrer  was  called  general  when  it  was  based  on  the  ground 
that  the  facts  stated  were  insufTicient  to  constitute  a  cause 
of  action,  and  special  when  based  upon  some  defect  of  form 
of  the  pleading.  The  code,  however,  has  generally  abolished 
any  such  distinction  in  name,  and  has  provided  certain 
causes  for  which  demurrers  will  lie,  and  a  demurrer  cannot 
be  successfully  interposed  except  for  a  cause  specified  in  the 
statute.     Notwithstanding  this  fact,  the  demurrer  for  in- 


IntroducLion. 


1370 


[Chapter  LXXXIII. 


sufficiency  of  facts  is  still  quite  universally  called  a  general 
demurrer. 

A  demurrer  cannot  properly  state  facts;  it  will  only  lie  for 
defects  appearing  on  the  face  of  the  pleading  demurred  to; 
resort  cannot  be  had  either  to  evidence  or  other  pleadings  to 
help  out  the  pleading  attacked;  it  will  not  lie  to  a  mere 
fragment  of  a  pleading,  but  must  be  addressed  to  an  entire 
pleading,  or  an  entire  count  or  separate  cause  of  action;  it 
operates  also  as  an  admission  of  all  material  facts  well 
pleaded,  but  not  as  an  admission  of  mere  inferences  from 
facts  or  conclusions  of  law.  It  may  be  based  upon  any  or 
all  of  the  statutory  grounds,  but  when  several  grounds  are 
relied  upon  they  should  be  numbered  and  stated  separately. 
The  prayer  for  relief  cannot  be  demurred  to,  nor  is  it  ground 
for  demurrer  that  more  relief  is  prayed  for  than  the  plaintiff 
is  entitled  to. 

The  statutes  governing  demurrers  are  quite  similar  in  the 
various  states,  although  there  are  some  substantial  differ- 
ences in  the  grounds  upon  which  demurrers  may  be  based. 
The  various  statutes  are  cited  in  the  note.^ 


1  Wis.  Stats.  1913  sec.  2649;  Ariz. 
R.  S.  1913  sec.  468;  Ark.  Dig.  of 
Stats.  1904  sec.  6093;  Cal.  C.  C.  P. 
1906  sec.  430;  Colo.  Code  Ann.  1911 
sec.  56;  Idaho  Rev.  Codes  1908; 
Iowa  Ann.  Code  1897  sec.  3561; 
Kans.  Gen.  Stats.  1909  sec.  5686; 
Mont.  Rev.  Codes  1907  sec.  6534; 
Minn.  Gen.  Stats.  1913  sec.  7754; 
Mo.  R.  S.  1909  sec.  1800;  Neb.  R.  S. 
1913  sec.  7666;  N.  Dak.  Rev.  Codes 
1905  sec.  6854;  S.  Dak.  C.  C.  P. 

1908  sec.  121;  Okla.  Comp.  Laws 

1909  sec.  5629;  Oregon  Laws  1910 
sec.  68;  Utah  Comp.  Laws  1907 
sec.  2962;  Wash.  Rem.  and  Bal. 
Code  1910  sec.  259;  Wyo.  Comp. 
Stats.  1910  sec.  4381. 

The  substantial  differences  in  the 
various  code  provisions  cited  are 
indicated  in  the  following  summary, 
viz,  demurrer  may  be  based  upon 
the  ground : 

(a)  That  the  court  has  no  juris- 
diction of  the  person  of  the  defend- 
ant. (In  all  the  states  except 
Arizona.) 


(b)  That  the  court  has  no  juris- 
diction of  the  subject  of  the  action. 
(In  all  the  states.) 

(c)  That  the  plaintiff  has  not 
legal  capacity  to  sue.  (In  all  the 
states.) 

(d)  That  there  is  another  action 
pending  between  the  same  parties 
for  the  same  cause.  (In  all  the 
states.) 

(e)  That  there  is  a  defect  of 
parties,  plaintiff  or  defendant.  (In 
all  the  states  except  Kansas.) 

(f)  That  there  is  a  misjoinder  of 
parties,  plaintiff  or  defendant.  (In 
California,  Colorado,  Idaho,  Mon- 
tana, Utah  and  Wyoming.) 

(g)  That  a  party  plaintiff  or  de- 
fendaat  is  not  a  necessary  party  to  a 
complete  determination  of  the  ac- 
tion.    (In  Missouri.) 

(h)  That  several  causes  of  action 
have  been  improperly  united.  (In 
all  the  states  except  Arkansas,  Iowa 
and  Kansas.) 

(i)  That  separate  causes  of  ac- 
tion against  several  defendants  are 


Chapter  LXXXIII.]  1371  [Forms  1821-1824. 

1821.  Outline  form  of  demurred  to  complaint. 

[Title.] 

The  defendant  demurs  to  the  complaint  [or  petition] 
herein  on  the  ground  that  it  appears  on  the  face  thereof  that 
[here  state  the  specific  ground  of  demurrer.] 

1822.  General  demurrer  to  complaint  (Wis.  Stats.  1913 

sec.  2649). 
[Title.] 

The  defendant  [or  if  only  part  of  the  defendants  demur:  the 
defendants,  naming  the  demurrants,  demur]  demurs  to  the 
complaint  herein  [or,  to  the  first,  or  second,  or  other,  cause  of 
action  stated  in  the  complaint  herein]  on  the  ground  that 
it  appears  upon  the  face  thereof*  that  the  same  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action. 

E....  F..... 
Defendant's  Attorney, 
Wis. 

1823.  Demurrer  for  want  of  jurisdiction  of  the  person 

(Wisconsin) . 

[Add  to  last  preceding  form,  or  substitute  at  *]  that  the  court 
has  no  jurisdiction  of  the  person  of  this  defendant  [or,  these 
defendants]. 

1824.  Demurrer  for  want  of  jurisdiction  of  the  subject 

(Wisconsin) . 

[Add  to  first  form  in  this  chapter,  or  substitute  at  *]  that  the 
court  has  no  jurisdiction  of  the  subject  of  the  action. 

improperly  joined.    (In  Wyoming.)  by  law.     (In  Wisconsin,  Arizona, 

(j)  That  the  complaint  does  not  Oregon  and  Washington.) 
state  facts  sufTicient  to  constitute  (n)  That  the  petition,  on  the  face 

a  cause  of  action.    (In  all  the  states  thereof,  shows  the  cause  of  action  is 

except  Iowa.)  barred  by  the  statute  of  limitations; 

(k)  That  the  facts  stated  in  the  or  fails  to  show  it  to  be  in  writing, 

petition  do  not  entitle  the  plain-  where  it  should  be  so  evidenced;  or, 

tiff  to  the  relief  demanded.      (In  if  founded  on  an  account  or  writing 

Iowa.)  as  evidence  of  indebtedness,   that 

(1)  That   the   complaint   is   am-  neither  such  writing  or  account,  or 

biguous,   or   unintelligible,    or   un-  a  copy  thereof,  is  incorporated  into 

certain.     (In  California,  Colorado,  or  attached  to  the  pleading,  or  a 

Idaho,  Montana  and  Utah.)  sufficient  reason  stated  for  not  do- 

(m)  That    the    action    was    not  ing  so.     (In  Iowa.) 
commenced  within  the  time  limited 


Forms  1825-1828.]  1372  [Chapter  LXXXIII. 

1825.  Demurrer  for  incapacity  to  sue  (Wisconsin)  .^ 

[Add  to  first  form  in  this  chapter,  or  substitute  at  *]  that  the 
plaintiff  has  not  legal  capacity  to  sue  in  this,  that  [here  state 
particularly  the  defect,  as  for  instance:  the  plaintiff  is  a  minor 
under  the  age  of  twenty-one  years,  and  no  guardian  ad  litem 
has  been  appointed  for  the  purposes  of  this  action]. 

1826.  For  pendency  of  aoiother  action  (Wisconsin). 

[Add  to  first  form  in  this  chapter,  or  substitute  at  *]  that  there 
is  another  action  pending  between  the  same  parties  for  the 
same  cause. 

1827.  For  defect  of  parties  (Wisconsin) .' 

[Add  to  first  form  in  this  chapter,  or  substitute  at  *]  that 
there  is  a  defect  of  parties  plaintiff  [or  defendant]  by  reason  of 
the  omission  of  [here  designate  the  omitted  party  either  by 
name  or  by  the  character  in  which  he  is  described  in  the  com- 
plaint, e.  g.] :  the  husband  of  the  plaintiff. 

1828.  Demurrer  for  misjoinder  of  causes  of  action  (Wis. 

consin). 

[Add  to  first  form  in  this  chapter,  or  substitute  at  *]  that  sev- 
eral causes  of  action  have  been  improperly  united.  [This 
general  statement  seems  sufficient  under  Wis.  Stats.  1913  sec. 
2651;  if  it  is  deemed  best  to  state  the  defect  specifically  it  may 
be  easily  done  by  adding  to  the  foregoing :  as  follows,  to-wit,  the 
first  cause  of  action  in  said  complaint  being  for  breach  of  a 
contract  of  employment,  and  the  second  cause  of  action 
being  in  tort  to  recover  for  an  assault  upon  the  person,  or 
otherwise  according  to  the  fact.] 

•When    the    demurrer  is  based  87  Wis.  406;  58  N.  W.  750.    This 

upon  this  ground  the  defect  relied  demurrer  only  Ues  for  a  deficiency, 

upon  must  be  particularly  stated.  not  for  an  excess  of  parties,   ex- 

Wis.  Stats.  1913  sec.  2651.  cept  in  the  single  case  of  joining 

'  The  defect  must  be  particularly  the  wife  as  a  plaintiff  where  she 

stated   if   the   demurrer   be   based  has  no  interest  in  the  action.    Read 

upon  this  ground.    Wis.  Stats.  1913  v.  Sang,  21  Wis.  678;  G.  W.  Co.  v. 

sec.  2651;  Gunderson  v.  Thomas,  Insurance  Co.,  40  Wis.  373. 


Chapter  LXXXIIL]  1373  [Forms  1829-1831. 

1829.  Demurrer  based  on  statute  of  limitations  (Wis- 

consin). 

[Add  to  first  form  in  this  chapter,  or  substitute  at  *]  that  the 
action  was  not  commenced  within  the  time  limited  by  law, 
to-wit,  within  the  time  limited  by  section  ....  of  the  Stat- 
utes of  Wisconsin  for  the  year  1913  [by  Wis.  Stats.  1913  sec. 
2651,  when  this  ground  of  demurrer  is  taken  there  must  be  a 
reference  to  the  particular  statute  relied  on]. 

1830.  Demurrer  to  defense  in  answer  (Wis.  Stats.  1913 

sec.  2658). 
[Title.] 

The  plaintiff  herein  demurs  to  the  answer  herein  [or,  to 
the  first  defense  stated  in  the  answer  herein],  on  the  ground 
that  upon  the  face  thereof  the  said  answer  [or  defense]  does 
not  state  facts  sufTicient  to  constitute  a  defense. 

E....  F 

Plaintiff's  Attorney. 

1831.  Demurrer  to  counter-claim  (Wis.  Stats.  1913  sec. 

2658). 

[Title.] 

The  plaintiff  herein  demurs  to  the  first  counter-claim  in  the 
answer  herein  [or  when  there  are  separate  answers:  in  the 
answer  of  the  defendant  C .  .  .  .  D . . . .  herein],  on  the  ground 
that  upon  the  face  thereof  said  counter-claim  does  not  state 
facts  sufficient  to  constitute  a  counter-claim  [because  the 
court  has  no  jurisdiction  thereof]. 

Or:  because  said  defendant  has  not  legal  capacity  to  main- 
tain the  same. 

Or:  because  there  is  another  action  pending  between  the 
same  parties  for  the  same  cause. 

Or :  because  there  is  a  defect  of  parties,  in  this,  to-wit,  that 
[here  state  what  the  defect  is  and  whether  in  parties  plaintiff  or 
defendant,  and  what  additional  party,  naming  him,  should  be 
present]. 

Or:  because  the  said  counter-claim  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action. 

Or :  because  the  cause  of  action  stated  therein  is  not  plead- 
able as  a  counter-claim  to  this  action. 

E....F...., 
Plaintiff's  Attorney. 


Forms  1832-1835.]  1374  [Chapter  LXXXIIL 

1832.  Demurrer  to  reply  (Wis.  Stats.  1913  sec.  2633). 

[Title.] 

The  defendant  herein  demurs  to  the  reply  of  the  plaintiff 
herein,  on  the  ground  that  upon  the  face  thereof  said  reply 
does  not  state  facts  sufTicient  to  constitute  a  defense. 

E....F...., 
Defendant's  Attorney. 

1833.  Demurrer  to  complaint  for  insufficiency  (Minn. 

Gen.  Stats.  1913  sec.  7754). 

The  defendant  demurs  [or,  the  defendants  C . . . .  D . . . . 
and  E....  F....,  naming  the  demurrants,  demur]  to  the 
complaint  herein  [or,  to  the  first,  or  second  cause  of  action 
stated  in  the  complaint  herein]  on  the  ground  that  it  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action. 

G....   H 

Defendant's  Attorney. 

1834.  The  same,  another  form. 

[Follow  last  preceding  form  to  and  including  the  word 
"ground"  and  continue  as  follows]  that  it  appears  on  the  face 
thereof*  that  the  facts  stated  to  not  constitute  a  cause  of 
action. 

G....   H...., 
Defendant's  Attorney. 

1835.  Other  forms  of  demurrer  (Minn.  Gen.  Stats.  1913 

sec.  7754).* 

[Add  to  last  preceding  form  or  substitute  at  *]: 
That  the  court  has  not  jurisdiction  of  the  person  of  this 
defendant  [or  these  defendants]. 

*  More  than  one  of  the  various  this  objection  may  be  raised  by  the 
statutory  grounds  of  demurrer  may  general  demurrer.  Trebby  v.  Sim- 
be  joined  in  the  same  demurrer,  mons,  38  Minn.  509;  38  N.  W.  693. 
but  they  must  be  separately  stated  For  the  states  in  which  the 
and  should  be  numbered.  The  statute  of  limitations  is  ground  for 
statute  of  Minnesota  does  not  demurrer  see  note  (1),  this  chapter, 
specifically  provide  for  the  raising  In  Minnesota  excess  of  parties  is 
of  the  objection  by  demurrer  that  not  ground  for  demurrer  as  a  defect 
the  action  is  barred  by  the  statute  of  parties.  Hoard  v.  Clum,  31 
of  limitations,  but  the  Supreme  Minn.  186;  17  N.  W.  275. 
Court  of  that  state  has  held  that 


Chapter  LXXXIIL]  1375  [Forms  183G-1838. 

Or:  that  the  court  has  not  jurisdiction  of  the  subject  of 
the  action. 

Or:  that  the  plaintiff  has  not  legal  capacity  to  sue. 

Or:  that  there  is  another  action  pending  between  the  same 
parties  for  the  same  cause. 

Or:  that  there  is  a  defect  of  parties  plaintiff  [or  defendant] 
by  reason  of  the  omission  of  [here  give  name  of  omitted  party  or 
describe  him  as  described  in  the  complaint,  giving  briefly  the 
facts  which  make  him  a  necessary  party]. 

Or:  that  several  causes  of  action  are  improperly  united, 
to-wit,  an  action  on  contract  and  an  action  in  tort  for  tres- 
pass to  real  property  [or  otherwise  state  the  nature  of  the  ac- 
tions, according  to  the  fact], 

1836.  Demurrer  to  defense  in  answer  (Minn.  Gen.  Stats. 

19i:  sec.  7760). 

[Title.] 

The  plaintiff  demurs  to  the  answer  [or,  to  the  first  defense 
set  forth  in  the  answer]  herein  on  the  ground  that  upon  its 
face  the  said  answer  [or  defense]  does  not  state  facts  sufficient 
to  constitute  a  defense. 

E....  F...., 
Plaintiff's  Attorney. 

1837.  Demurrer  to  counter-claim  (Minn.  Gen.  Stats.  1913 

sec.  7760). 

[Title.] 

The  plaintiff  demurs  to  the  [first]  counter-claim  set  forth  in 
the  answer  herein,  on  the  ground  that  upon  its  face  the  same 
does  not  state  facts  sufficient  to  constitute  a  counter-claim. 

E....  F...., 
Plaintiff's  Attorney. 

1838.  Demurrer  to  petition  (Iowa  Ann.  Code  1897  sec. 

3561).^ 
[Title.] 

The  defendant  demurs  [or,  the  defendants  G . . . .  D .  . . . 
and  E....   F....,  naming  the  demurrants,  demur]  to  the 

*  In  Iowa,  by  statute,  the  various  state  the  objections  in  the  terms  of 
grounds  of  demurrer  must  be  num-  the  statue,  but  the  defect  relied 
bered.   and  it  is  not  sufficient  to      upon,  whether  resulting  from  fatti 


Form  1838.]  1376  [Chapter  LXXXIII. 

petition  herein  [or,  to  the  first,  or  the  second  count  of  the 
petition  herein]  on  the  ground  that  it  appears  on  the  face  of 
said  petition  [or  count].* 

I.  That  the  court  has  no  jurisdiction  of  the  person  of  the 
defendant  because  said  petition  shows  that  [here  state  partic- 
ularly the  fact  appearing  on  the  face  of  the  petition  which  shows 
lack  of  Jurisdiction]. 

II.  That  the  court  has  no  jurisdiction  of  the  subject  of 
this  action  because  said  petition  shows  that  [state  the  facts 
showing  lack  of  Jurisdiction]. 

III.  That  the  plaintiff  herein  has  not  legal  capacity  to  sue 
in  this,  that  it  appears  from  said  petition  that  the  plaintiff 
is  under  the  age  of  majority  and  is  suing  in  his  own  name 
and  not  by  his  guardian  or  next  friend  [or  state  other  facts 
appearing  in  the  petition  and  showing  incapacity  to  sue]. 

IV.  That  there  is  another  action  pending  between  the 
same  parties  for  the  same  cause,  to-wit,  the  action  pending 

in  the court  [here  describe  the  other  action  fully  as  the 

same  is  set  forth  in  the  petition]. 

V.  That  there  is  a  defect  of  parties  plaintiff  [or  defendant] 
because  of  the  omission  of  [here  name  party  omitted  or  de- 
scribe him  as  he  is  described  or  referred  to  in  the  petition,  and 
briefly  state  the  facts  showing  him  to  be  a  necessary  party]. 

VI.  That  the  facts  stated  in  the  petition  [or  count]  do 
not  entitle  the  plaintiff  to  the  relief  demanded  in  this  [here  set 
out  particularly  the  defect  in  the  petition  which  is  relied  on]. 

VII.  That  said  petition  [or  count]  on  the  face  thereof 
shows  that  the  cause  of  action  therein  stated  accrued  more 
than  ....  years  prior  to  the  commencement  of  this  action, 
and  is  therefore  barred  by  the  statute  of  limitations,  to-wit, 
sec [name  the  section  relied  on]. 

VIII.  That  said  petition  on  the  face  thereof  shows  that 
the  cause  of  action  is  founded  upon  an  agreement  not  to  be 
performed  within   one  year  from  the  making  thereof   [or 

stated  or  omitted,  must  be  specific-  parties  is  not  demurrable  as  a  de- 
ally  pointed  out;  except  that  a  de-  feet  of  parties.  The  defect  of  par- 
murrer  to  an  equitable  petition  on  ties  contemplated  by  the  statute 
the  ground  that  the  facts  stated  is  a  failure  to  join  a  necessary  party, 
do  not  entitle  the  plaintiff  to  the  re-  Turner  v.  First  National  Bank,  26 
lief   demanded   may   be   stated   in  Iowa,  562. 

those  general   terms.      Iowa  Ann.  For  the  states  in  w^hich  mere  mis- 
Code  1897  sec.  3562.  joinder  is  a  ground  of  demurrer,  see 
In  Iowa  a  misjoinder  or  excess  of  note  (1),  this  chapter. 


Chapter  LXXXIIL]  1377  [Forms  1839-1841. 

state  the  nature  of  the  agreement,  showing  it  to  be  one  of  the 
agreements  required  to  be  in  writing  under  sec.  4625  Iowa 
Code],  and  fails  to  show  said  agreement  to  be  in  writing  as 
required  by  law. 

IX.  That  said  petition  shows  on  the  face  thereof  that  the 
cause  of  action  is  founded  on  an  account  [or  other  writing,  de- 
scribing it]  as  evidence  of  an  indebtedness,  and  that  neither 
such  writing  [or  account]  nor  any  copy  thereof  is  incorporated 
or  attached  to  said  petition,  nor  any  sufficient  reason  stated 
for  not  doing  so. 

G....   H...., 
Attorney  for  Defendant. 

1839.  General  demurrer  to  petition  in  equity  (Iowa  Ann. 

Code  1897  sec.  3562). 

[Title.] 

[Proceed  as  in  last  preceding  form  to  the  *  and  then  substitute 
as  follows]: 

That  the  facts  stated  in  said  petition  do  not  entitle  the 
plaintiff  to  the  relief  demanded. 

[See  note  to  preceding  form.] 

1840.  Demurrer  to  defense  in  answer  (Iowa  Ann.  Code 

1897  sec.  3575). 

[Title.] 

The  plaintiff  demurs  to  the  answer  herein  [or  to  the  first 
count  of  the  answer  herein]  on  the  ground  that  it  appears  on 
the  face  of  said  answer  [or  count]: 

I.  That  the  facts  stated  therein  are  not  sufficient  to 
constitute  a  defense  in  this  [here  state  specifically  the  defects 
claimed]. 

E....  F...., 
Plaintiff's  Attorney. 

1841.  Demurrer  to  counter-claim  (Iowa  Ann.  Code  1897 

sec.  3575). 

[Title.] 

The  plaintiff  demurs  to  the  first  counter-claim  set  forth  in 
the  answer  herein  on  the  ground  that  it  appears  on  the  face  of 
said  counter-claim: 
87 


Forms  1842,  1843.]  1378  [Chapter  LXXXIII. 

I.  [Here  set  forth  the  causes  of  demurrer,  as  in  case  of  a  de- 
murrer to  a  petition.  See  Form  1838.  A  demurrer  to  a 
counter-claim  lies  for  the  same  causes  as  a  demurrer  to  a 
petition,  except  that  it  will  not  lie  for  lack  of  jurisdiction  of 
the  person  of  defendant,  and  the  statute  of  limitations  will  not 
be  ground  for  demurrer  if  the  counter-claim  shows  that  it  was 
defendant's  property  when  it  became  barred  and  was  barred  at 
the  time  the  plaintiff's  claim  originated.  Iowa  Ann.  Code 
1897  sec.  3457.] 

E....  F 

Attorney  for  Plaintiff. 

1842.  Demurrer  to  reply   (Iowa  Ann.  Code  1897  sec. 

3579). 

[Title.] 

The  defendant  demurs  to  the  reply  herein  on  the  ground 
that  the  facts  stated  in  said  reply  do  not  amount  to  a  suffi- 
cient defense,  in  this  [here  state  specifically  the  defects  claimed]. 

E....  ¥...., 
Defendant's  Attorney. 

1843.  Demurrer  to  complaint  (N.  Dak.  Rev.  Codes  1905 

sees.  6854-6855;  S.  Dak.  C.  C.  P.  1908  sees.  121- 
122). 

[The  statutes  of  North  Dakota  and  South  Dakota  specifying 
the  grounds  upon  which  demurrers  to  complaints  may  be  based 
are  identical  in  terms,  and  are  also  identical  with  the  Wisconsin 
statutes  (Wis.  Stats.  1913  sec.  2649)  except  that  there  is  no 
provision  for  a  demurrer  on  the  ground  of  the  operation  of  the 
statute  of  limitations.  The  forms  heretofore  given  in  this  chap- 
ter for  demurrers  in  Wisconsin  may  therefore  doubtless  be  used 
with  safety  in  these  states,  with  the  exception  of  the  form  relating 
to  the  statute  of  limitations.  In  South  Dakota  it  has  been  held 
that  a  demurrer  in  the  language  of  the  statute  is  sufficient, 
except  that  if  based  upon  lack  of  jursidiction  it  must  specify 
whether  the  lack  be  of  person  or  subject-matter,  and  if  based  on 
defect  of  parties  it  must  specify  whether  it  be  of  parties  plaintiff 
or  defendant.  Hudson  v.  Archer,  4  S.  Dak.  128;  55  N.  W. 
1099.  I  have  found  no  direct  adjudication  on  the  subject  in 
North  Dakota,  but  in  Van  Dyke  v.  Doherty,  6  N.  Dak.  263; 
69  N.  W.  200,  it  seems  to  be  intimated  that  a  specific  statement 


Chapter  LXXXIIL]  1379  [Forms  1844,  1845. 

of  the  facts  constituting  the  defect  may  be  advisable  if  not 
necessary  in  that  state,  at  least  in  all  cases  where  the  demurrer 
is  not  a  general  demurrer.] 

1844.  Demurrer  to  answer  (N.  Dak.  Rev.  Codes  1905 

sec.  6863;  S.  Dak.  C.  C.  P.  1908  sec.  130). 

[For  this  demurrer  the  forms  heretofore  given  in  this  chapter 
for  use  in  Minnesota,  viz.:  Forms  1836  and  1837  may  be 
used.] 

1845.  Demurrer  to  petition  (Neb.  R.  S.  1913  sees.  7666, 

7667) .« 

[Title.] 

The  defendant  demurs  [or  the  defendants  C...  D.... 
and  E .  .  .  .  F .  .  .  . ,  naming  the  demurrants,  demur]  to  the 
petition  herein  [or  to  the  first,  or  second  cause  of  action  stated 
in  the  petition  herein]  on  the  ground  that  it  appears  upon  the 
face  of  said  petition: 

First.  That  the  court  has  no  jurisdiction  of  the  person  of 
the  defendant. 

Second.  That  the  court  has  no  jurisdiction  of  the  subject 
of  the  action. 

Third.     That  the  plaintiff  has  not  legal  capacity  to  sue. 

Fourth.  That  there  is  another  action  pending  between  the 
same  parties  for  the  same  cause. 

Fifth.     That  there  is  a  defect  of  parties  plaintiff. 

Sixth.     That  there  is  a  defect  of  parties  defendant. 

Seventh.  That  several  causes  of  action  are  improperly 
joined. 

Eighth.  That  the  petition  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action. 

G....   H 

Attorney  for  Defendant. 

« In  Nebraska  the  objection  that  Cox,  9  Nebr.  230;  2  N.  W.  705.    A 

the  cause  of  action  is  barred  by  the  demurrer  for  defect  of  parties  lies 

statute  of  limitations  may  be  taken  only  where  necessary  parties  have 

advantage  of  under  the  general  de-  been  omitted.    Hardy  v.  Miller,  11 

murrer  for  insufTiciency  of  facts  to  Nebr.  395;  9  N.  W.  475;  Baldt  v. 

constitute  a  cause  of  action.    Peters  Budwig,   19  Nebr.  739;  28  N.  W 

V.  Dunnells,  5  Nebr.  460;  Hurley  v.  280. 


Forms  1846,  1847.]  1380  [Chapter  LXXXIII. 

1846.  Demurrer  to  defense  in  answer  (Neb.  R.  S.  1913 

sec  7680). 

[Title.] 

The  plaintiff  demurs  to  the  answer  herein  [or  to  the  first 
count  of  the  answer  herein]  on  the  ground  that  it  appears 
upon  the  face  thereof  that  said  answer  [or  count]  does  not 
state  facts  sufficient  to  constitute  a  defense  to  this  action. 

E....F 

Plaintiff's  Attorney. 

1847.  Demurrer  to  counter-claim  or  set-off  (Neb.  R.  S. 

Iyl3  sec.  7680). 

[Title.] 

The  plaintiff  demurs  to  the  counter-claim  [or  set-off]  set 
forth  in  the  answer  [or  the  first  count  of  the  answer]  herein 
on  the  ground  that  it  appears  on  the  face  thereof: 

I.  That  the  court  has  no  jurisdiction  of  the  subject- 
matter  of  said  counter-claim  [or  set-off]. 

II.  [State  other  grounds,  as  in  case  of  demurrer  to  a  petition. 
See  Form  1845.] 

E....  F...., 
Plaintiff's  Attorney. 


CHAPTER  LXXXIV. 


ANSWERS,  FORMAL  PARTS  AND  DENIALS. 


1848.  Formal     parts     of     answer, 

general  form. 

1849.  The  same,  where  there  are 

several     defenses     and     a 
counterclaim. 

1850.  Commencement  of  answer  by 

defendant     appearing     in 
person. 

1851.  The  same,  by  defendant  sued 

by  wrong  name. 

1852.  The  same,  by  infant. 

1853.  The  same,  by  lunatic. 

1854.  The  same,  by  husband  and 

wife  answering  jointly. 

1855.  Answer  alleging  partial   de- 

fense. 

1856.  Answer     upon     information 

and  belief. 

1857.  General  denial. 

1858.  General    denial    of    one    of 


several  causes  of  action. 

1859.  Denial     of    allegations     not 

otherwise  answered. 

1860.  Denial   on   information   and 

belief. 

1861.  General  denial  of  knowledge 

or  information  sufficient 
to  form  a  belief. 

1862.  General  denial  as  to  a  part  of 

the  pleading. 

1863.  General  denial  of  knowledge 

or  information,  by  several 
defendants  answering  to- 
gether. 

1864.  Specific  denial  avoiding  neg- 

ative pregnant. 

1865.  General    denial   with   excep- 

tions. 

1866.  Specific  denial. 


The  purpose  of  an  answer  is  either  to  deny  material  alle- 
gations of  the  complaint,  to  state  additional  facts  to  avoid  the 
effect  of  the  facts  set  forth  in  the  complaint,  or  to  set  up  a 
counter-claim. 

Defects  appearing  on  the  face  of  the  complaint  which  are 
ground  for  demurrer  cannot  be  taken  advantage  of  by  ans- 
swer:  they  are  waived  by  failing  to  demur.  This,  however,  is 
a  general  rule  subject  to  exceptions.  Thus,  in  Wisconsin  the 
objection  of  the  operation  of  the  statute  of  limitations  may 
be  taken  advantage  of  by  answer  in  all  cases.  Wis.  Stats. 
1913  sec.  2653.  In  all  the  states  covered  by  this  work  ex- 
cept Iowa  and  Texas,  it  is  provided  by  statute  that  any  of 
the  various  grounds  of  demurrer  which  are  not  taken  ad- 
vantage of  by  demurrer  or  answer  shall  be  deemed  waived, 
except  the  objection  to  the  jurisdiction  of  the  court  and  the 
general  objection  that  the  complaint  does  not  state  sufTi- 


Introduction.]  1382  [Chapter  LXXXIV- 

cient  facts  to  constitute  a  cause  of  action, ^  In  Iowa  it  is 
held  generally  that  where  demurrable  defects  appear  on  the 
face  of  the  pleading  they  must  be  taken  advantage  of  by 
demurrer,  or  they  are  deemed  waived.  Linden  v.  Green, 
81  Iowa  365;  46  N.  W.  1108;  Daugherty  v.  C,  M.  &  St.  P. 
Co.,  87  Iowa  276;  54  N.  W.  219.  By  statute,  however 
(Iowa  Ann.  Code  1897  sec.  3563),  the  objection  that  the  facts 
stated  in  the  petition  do  not  entitle  the  party  to  any  relief 
may  be  taken  advantage  of  by  motion  in  arrest  of  judg- 
ment. There  cannot  be  a  demurrer  and  an  answer  to  the 
same  cause  of  action,  but  if  there  be  several  causes  of  action 
in  one  complaint  one  may  be  demurred  to  and  the  other 
answered.  The  codes  generally,  if  not  universally,  provide 
that  the  defendant  may  set  forth  in  his  answer  as  many  de- 
fenses or  counter-claims  as  he  may  have,  whether  they  be 
of  a  legal  or  equitable  nature,  but  they  must  be  pleaded 
separately.  Defenses  which  are  inconsistent  because  their 
allegations  of  fact  are  repugnant,  so  that  if  one  be  true  the 
other  must  be  false,  cannot  be  pleaded  together,  but  if  both 
may  be  true  and  they  are  only  inconsistent  because  based  on 
inconsistent  legal  theories  they  may  be  pleaded  together. 
S.  M.  B.  &  Co.  V.  Harte,  95  Wis.  592;  70  N.  W.  821 ;  Maxwell, 
Code  Pleading,  396,  397;  Pomeroy's  Code  Remedies  sec. 
722;  Steenerson  v.  Waterbury,  52  Minn.  211;  53  N.  W.  1146; 
Stebbins  v.  Lardner,  2  S.  Dak.  127;  48  N.  W.  847.  In  Iowa, 
by  express  statute,  inconsistent  defenses  may  be  pleaded  in 
the  same  answer  or  reply.  Iowa  Ann.  Code  1897  sec.  3620. 
Each  defense  or  counter-claim  pleaded  must  be  complete  in 
itself,  but  this  does  not  necessarily  require  repetition  at 
length  of  facts  common  to  both  defenses.  If  once  stated, 
such  facts  may  be  incorporated  in  another  separate  defense 
or  counter-claim  by  reference  thereto  and  appropriate 
words  by  which  they  are  adopted.  Hypothetical  defenses 
should  be  avoided  if  possible,  but  may  be  allowable  where 

1  Wis.  Stats.  1913  sec.  2654;  Ariz.  Neb.  R.  S.  1913  sec.  7668;  N.  Dak. 

R.  S.   1913  sec.  469;  Ark.  Dig.  of  Rev.  Codes  1905  sec.  6858;  S.  Dak. 

Stats.  1904  sec.  6096;  Cal.  C.  C.  P.  C.  C.  P.  1908  sec.  125;  Okla.  Comp. 

1906  sec.  434;  Colo.  Code  Ann.  1911  Laws  1909  sec.  5631;  Oregon  Laws 

sec.  61;  Idaho  Rev.  Codes  1908  sec.  1910   sec.    72;   Utah    Comp.    Laws 

4178;  Kans.  Gen.  Stats.  1909  sec.  1907  sec.  2967;  Wash.   Rem.   and 

5688;  Mont.  Rev.  Codes  1907  sec.  Bal.    Code    1910    sec.    263;    Wyo. 

6539;  Minn.  Gen.  Stats.  1913  sec.  Comp.  Stats.  1910  sec.  4383. 
7755;  Mo.   R.   S.   1909  sec.   1804; 


Chapter  LXXXIV.]  1383  [Form  1848. 

addressed  to  a  matter  not  presumptively  within  defendant's 
knowledge  and  coupled  with  a  denial  of  information  and 
belief  as  to  the  truth  of  such  matter. 

Denials  under  the  code  must  be  general  or  specific,  the 
general  denial  being  properly  addressed  to  the  whole  com- 
plaint, and  the  specific  denial  to  a  single  allegation.  Under 
denials  in  either  form  the  defendant  cannot  prove  any  affirm- 
ative defense,  but  can  only  contradict  or  disprove  some  part 
of  the  plaintiff's  proof.  The  denial  should  meet  only  ma- 
terial facts,  and  if  the  specific  allegation  to  be  denied  is  in 
the  conjunctive  the  denial  should  be  in  the  disjunctive,  other- 
wise the  denial  will  become  a  negative  pregnant  and  may  be 
held  to  raise  no  issue.  Grimm  v.  Washburn,  100  Wis.  229; 
75  N.  W.  984;  Bliss,  Code  PI.  sec.  332. 

1848.    Formal  parts  of  answers,  general  form. 

[Name  of  court.] 


A....  B....  andC...  D.... 
Plaintiffs, 
vs. 
E. . . .  F. . . .  [answering  defend- 
ants, and  where  there  are  others 
who  do  not  answer  add:  im- 
pleaded  with   G....    H.... 
and  others]. 

Defendant 
[or  Defendants]. 


The  defendant  E....  F....,  answering  the  complaint 
herein,  denies  [or,  if  the  defense  is  new  matter,  alleges,  or  if 
the  new  matter  be  available  as  a  counter-claim,  alleges  for  a 
counter-claim   thereto]: 

I.  That,  etc. 

[If  there  be  no  counter-claim,  a  prayer  for  a  judgment  of  dis- 
missal is  probably  unnecessary,  but  it  is  usual  to  add  it,  as 
follows] : 

WHEREFORE,  the  said  defendant  demands  judgment 
dismissing  said  complaint  wilh  costs. 


Forms  1849-1852.]      ,  1384  [Chapter  LXXXIV. 

[//  there  be  a  counter-claim,  there  should  be  a  prayer  for 
judgment  of  dismissal  of  the  complaint,  and  for  affirmative  relief 
upon  the  counter-claim,  as  though  it  were  a  complaint.] 

J....  K...., 
Attorney    for    Defendant    E....    F.... 
[Add  verification    if  complaint   be   verified.    See   Chapter 
XVIII,  supra.] 

1849.  The  same,  where  there  are  several  defenses  and  a 

counter-claim. 

[Title.] 

The  defendant  E F . . . . ,  answering  the  complaint 

herein : 

First.  For  a  first  defense  to  the  first  alleged  cause  of  ac- 
tion, denies  [etc.,  generally  or  specifically]. 

Second.  For  a  further  defense  to  said  first  cause  of  action, 
said  defendant  alleges  [here  set  forth  the  facts  constituting  the 
defense]. 

Third.  For  a  further  defense  to  said  first  cause  of  action, 
said  defendant  alleges  [here  set  forth  the  facts  constituting  it, 
except  that  if  any  of  them  have  been  alleged  above,  an  express 
reference  to  and  adoption  of  those  allegations  will  suffice  instead 
of  a  repetition  of  them]. 

Fourth.  For  a  counter-claim  to  the  second  alleged  cause 
of  action,  said  defendant  alleges,  etc. 

WHEREFORE,   said  defendant  demands,  etc. 

1850.  Commencement  of  answer  by  defendant  appearing 

in  person. 

The  defendant  Y Z....,  in  person,   answering  the 

plain tifT's   complaint   herein,    alleges    [or,    denies]: 

1851.  The  same,  by  defendant  sued  by  wrong  name. 

This  defendant,  E. . . .  F. . . .,  in  the  summons  and  com- 
plaint in  this  action  called  G....  E....,  answering  the 
plaintiff's  complaint  herein,  alleges  [or  denies]: 

1852.  The  same,  by  infant. 

This  defendant,  an  infant  under  the  age  of  twenty-one 
years,  by  G .  . . .  D . .  .  . ,  his  guardian,  answering  the  plain- 
tiff's complaint  herein,   alleges  [or  denies]: 


Chapter  LXXXIV.]-  1385  [Forms  1853-1859. 

1853.  The  same,  by  lunatic. 

The  defendant  E....F ,a  lunatic  [or,  a  person  of  un- 
sound mind,  or  an  idiot,  or  an  habitual  drunkard],  by  M . . . . 
N. . . .,  his  committee  and  guardian  [or  by  0 ... .  P . . . .,  his 
duly  appointed  guardian  ad  litem],  answering  the  plaintiff's 
complaint  herein,  alleges  [or  denies]: 

1854.  The  same,  by  husband  and  wife  answering  jointly. 

E....  F....,  one  of  the  above-named  defendants,  and 
G. . . .  F. . . .,  his  wife,  answering  the  plaintiff's  complaint 
in  this  action,  jointly  allege  [or  deny]: 

1855.  Answer  alleging  partial  defense. 

The  defendant,  for  a  partial  defense  to  the  alleged  cause  of 
action  set  forth  in  the  complaint,  alleges  [or  denies] : 

1856.  Answer  upon  information  and  belief. 

The  -defendant,  answering  the  complaint  of  the  plaintiff 
herein,  upon  information  and  belief,  denies  [or  alleges]: 

1857.  General  denial. 

The  defendant  E F....,   answering  the  complaint 

herein,  denies  each  and  every  allegation  thereof. 

1858.  General  denial  of  one  of  several  causes  of  action. 

The  defendant,  answering  the  first  alleged  cause  of  action 
contained  in  the  complaint  herein,  denies  each  and  every 
allegation  in  the  said  alleged  first  cause  of  action  contained. 

1859.  Denial  of  allegations  not  otherwise  answered.^ 

The  defendant,  answering  the  complaint  herein,  denies 
each  and  every  allegation  in  said  complaint  contained  not 
hereinbefore  [or  hereinafter]  specifically  admitted  [or  spe- 
cifically controverted]. 

'This  form  of  denial  is  quite  fre-  46;  64  N.  W.  423.     In  Minnesota 

quently  used  and  is  generally  held  it  is  said  to  be  sufficient  if  there  is 

sufficient;  but  it  must  be  said  that  no    ambiguity   as   to   the   matters 

it  can   hardly   be   called   either   a  which    are    specifically    answered, 

general   or  specific  denial   and   its  Jellison  v.  Halloran,  40  Minn.  485; 

use   is   not   to   be    recommended.  42  N.  W.  392. 
Althouse   V.   Jamestown,    91    Wis. 


Forms  1860-18G6.]  1386  [Chapter  LXXXIV. 

1860.  Denial  on  information  and  belief. 

Upon  information  and  belief  the  defendant  denies  [state 
hat  allegations  of  complaint  are  denied.] 

1861.  General  denial  of  knowledge  or  information  suf- 

ficient to  form  a  belief. 

Says  that  he  has  no  knowledge  or  information  sufficient 
to  form  a  beUef  as  to  the  truth  of  any  of  the  allegations  of  the 
complaint. 

1862.  General  denial  as  to  a  part  of  the  pleading.' 

Denies  each  and  every  allegation  contained  in  paragraphs 
numbered  ....  and  ....  of  said  complaint. 

1863.  General  denial  of  knowledge  or  information,  by 

several  defendants  answering  together. 

Severally  say,  each  for  himself  that  he  has  no  knowledge, 
or  information  sufficient  to  form  a  belief  as  to  the  truth  of 
any  of  the  allegations  of  the  said  complaint. 

1864.  Specific  denial  avoiding  negative  pregnant. 

Denies  that  at  [name  place  stated  in  complaint]  or  at  any 
other  place,  and  in  the  [name  day  charged  in  complaint] 
or  at  any  other  time  the  defendant  assaulted  or  struck  plain- 
tiff [or  otherwise  negative  the  specific  allegations  of  the  com- 
plaint.] 

1865.  General  denial  with  exceptions. 

Denies  each  and  every  allegation  in  said  complaint  con- 
tained except: 

1.  The  allegation  that  [state  specifically  the  allegation 
not  denied]. 

2.  The  allegation  that,  etc. 

1866.  Specific  denial. 

The  defendant,  answering  the  complaint  herein,  denies 
that  he  ever  indorsed  the  said  note. 

'  In  Collins  v.  Singer  Mfg.  Co.,      and  folios  of  the  complaint  was  held 
53  Wis.  305;  10  N.  W.  477,  a  denial      insufficient, 
of  everything  between  certain  words 


CHAPTER  LXXXV. 


DEFENSES  IN  ABATEMENT. 


1867.  No  jurisdiction  of  the  sub- 

ject or  person. 

1868.  The  same,  by  foreign  consul. 

1869.  That  a  court  of  the  United 

States  possesses  exclusive 
jurisdiction. 

1870.  Alien  enemy. 

1871.  Defendant  an  Indian. 

1872.  Another  action  pending. 

1873.  Another  form,  in  the  case  of  a 

counterclaim. 

1874.  Pendency      of      partnership 

cause,  in  answer  to  parti- 
tion suit. 

1875.  Misnomer. 

1876.  Non-joinder  of  one  who  was 

a  party  to  the  contract. 

1877.  The  same,  in  case  of  indorse- 

ment, etc. 

1878.  Non-joinder  of  other  owners 

in  actions  relative  to  land. 

1879.  Non-joinder  of  a  co-adminis- 

trator. 


1880.  Non-joinder  of  a  co-executor. 

1881.  Non-joinder    of    tenant    in- 

common,  as  to  part  of  the 
goods. 

1882.  Joint  interest  in  plaintiff  and 

a  third  person. 

1883.  Non-joinder  of  necessity  de- 

fendant. 

1884.  Partnership     of     defendants 

with  a  third  person. 

1885.  Assignment     of     cause     of 

action,  by  plaintiff,  to  third 
person. 

1886.  That  plaintiff  has  been  ad- 

judged a  bankrupt. 

1887.  That   plaintiff   has   an   ade- 

quate remedy  at  law. 

1888.  Action  premature,  credit  un- 

expired. 

1889.  Extension   of   time   of   pay- 

ment. 


The  codes  generally  do  not  retain  the  name  "plea"  or 
"answer  in  abatement,"  but  the  inherent  nature  of  such 
defenses  is  not  changed.  They  are  such  defenses  as  go  to 
the  maintenance  of  the  present  action  alone,  as  distinguished 
from  defenses  which  go  to  the  cause  of  action  itself.  They 
are  to  be  pleaded  as  separate  defenses,  but  are  to  be  pleaded 
in  the  same  answer  with  defenses  in  bar,  and  not  alone  and 
before  pleading  the  defenses  in  bar,  as  was  the  rule  at 
common  law. 


1867.    No  jurisdiction  of  the  subject  or  person. 

The  defendant,  further  answering,  alleges  that  this  court 
has  no  jurisdiction  of  said  supposed  cause  of  action  set  forth 
in  the  complaint  [or,  of  the  person  of  this  defendant],  for  the 


Forms  1868-1870.]  1388  [Chapter  LXXXV. 

reason  that*  [here  state  the  facts  showing  lack  of  jurisdiction 
of  subject-matter  or  person,  fully  and  exactly]. 

1868.  The  same,  by  foreign  consul. 

[As  in  last  preceding  form  to  *,  and  then  continue]:  this  de- 
fendant was  at  the  commencement  of  this  action,  and  is  now, 
consul  of  the  King  of  Italy  for  the  city  of duly  accred- 
ited to  the  President  of  the  United  States,  and  by  him  re- 
ceived and  acknowledged  as  such. 

1869.  That  a  court  of  the  United  States  possesses  exclu- 

sive jurisdiction  (sustained  in  U.  S.  v.  Lathrop, 
17  Johns.  4). 

I.  That  said  county  is  within  the  ....  district,  in  which 
there  is  and  was  a  circuit  court  of  the  United  States,  called  a 
district  court,  holden  for  said district. 

II.  That  all  suits  or  penalties  and  forfeitures  incurred 
under  the  laws  of  the  United  States,  to  which  the  United 
States  are  parties,  arising  within  said  district,  ought  to  be 
brought  in  said  court,  and  not  elsewhere. 

III.  That  said  A.  .  . .  B at  the  commencement  of 

this  suit,  was  and  still  is  resident  within  said  district,  and 
at 


1870.    Alien  enemy  (sustained  in  Bell  v.  Chapman,  10 
Johnson  183). 

I.  That  the  plaintiff  was  not  at  the  commencement  of 
this  action,  and  is  not  now,  a  citizen  of  the  United  States,  by 
naturalization  or  otherwise;  but  was  and  is  an  alien,  born  in 

out  of  the  allegiance  of  the  United  States,  and  within 

the  allegiance  of  the  kingdom  of 

II.  That  at  the  commencement  of  this  action  the  gov- 
ernment of  said were  and  still  are  at  war  with,  and 

enemies  of  the  United  States. 

III.  That  the  plaintiff  then  was,  and  still  is,  an  alien 

enemy  abiding  without  the  United  States,  and  at , 

within  said ,  and  adhering  to  the  said  enemies  of  the 

United  States. 


Chapter  LXXXV.]  1389  [Forms  1871-1874. 

1871.  Defendant  an  Indian.  • 

That  the  defendant,  at  the  time  of  making  the  said  writing 
obligatory,  was,  ever  since  has  been,  and  still  is,  an  Indian, 

residing  on  lands  reserved  to  the Indians,  within  the 

purview  of  the  act  entitled  [title]  passed  [date  of  enactment]. 

1872.  Another  action  pending. 

That  at  the  commencement  of  this  action  there  was,  and 

now  is,  another  action  pending  in  the court,  in  and  for 

the  county  of in  this  state,  between  the  same  parties 

as  this  action*,  and  for  the  same  cause  as  that  set  forth  in 
the  complaint  herein. 

1873.  Another  form,  in  tfhe  case  of  a  counter-claim. 

[As  in  preceding  form  to  the  *,  continuing]:  in  which  the 
plaintiff  in  this  action,  being  the  defendant,  has  set  up  the 
same  cause  of  action,  alleged  in  the  complaint  as  a  counter- 
claim, against  this  defendant,  who  is  the  plaintiff  in  the  said 
action. 

1874.  Pendency  of  partnership  cause,  in  answer  to  parti- 

tion suit  (sustained  by  Danvers  v.  Dorrity,  14 
Abb.  Pr.  206). 

I.  That  the  premises  of  which  the  plaintiff  seeks  partition 
belong  to  the  parties  to  the  action  as  tenants  in  common. 

II.  That  the  parties  were  partners  in  trade,  and  carried 
on  business  on  said  premises,  and  that  the  said  premises  were 
owned  by  them  as  such  copartners. 

III.  That  in  the  month  of ,  19. .,  the  partnership 

was  dissolved  by  the  retirement  of  one  of  the  defendants 

therefrom;  and  in ,  19. .,  and  before  this  action  the, 

defendant  D commenced  an  action  in  the    

court  of against  the  plaintiff  in  this  action  and  the 

defendant  R ,  demanding  judgment  that  the  defend- 
ants therein  be  decreed  to  render  an  account  of  the  stock, 
fixtures,  machinery,  and  effects,  and  that  the  plaintiff's 
interest  be  adjusted  and  stated,  and  that  he  have  judg- 
ment for  the  amount  of  his  interest  therein,  or  that  a  re- 
ceiver be  appointed  to  take  and  sell  the  property,  and  dis- 
tribute it  among  the  partners  according  to  their  respective 
interests;  which  action  is  still  pending  and  undetermined. 


Forms  1875-1880.]  1390  [Chapter  LXXXV. 

1875.  Misnomer. 

That  the  true  name  of  the  plaintiff  [or  this  defendant]  is, 
and  always  has  been,  E .  .  .  .  F .  .  .  .  and  not  A B . . . . , 

in  which  name  he  sues  [or  is  sued]. 

1876.  Non- joinder  of  one  who  was  a  party  to  the  con- 

tract. 

I.  That  the  supposed  contract  [or  other  cause  of  action] 
mentioned  in  the  complaint,  if  any  such  was  made,  was  made 
with  said  Y . . . .  Z .  .  .  .  by  the  plaintiff  [or  by  the  defendant] 
and  *  one  M , . . .  N. .  .  .  jointly  [and  if  as  partners,  add:  as 
partners,  under  the  firm-name  of  Y, .  .  .  Z.  .  .  .  &  Co.] 

II.  That  the  said  M N is  still  living,  at 

1877.  The  same,  in  case  of  indorsement,  etc. 

I.  That  the  supposed  note  in  the  complaint  alleged  to 
have  been  indorsed  [or  transferred]  to  the  plaintiff,  was  not 
indorsed  [or  transferred]  to  him  individually,  but  to  the  plain- 
tiff and  one  [continue  as  inform  1876  from  the  *]. 

1878.  Non- joinder  of  other  owners  in  actions  relative  to 

land. 

That  M N and  O P ,  residing  at 

are  tenants  in  common  with  the  plaintiff  in  said  lands,  and 
necessary  parties  to  this  action. 

1879.  Non- joinder  of  a  co-administrator. 

That  after  the  death  of  said  M  ....  N ...  .  and  on  or  about 

the  ....  day  of ,  19.  .,  letters  of  administration  were 

duly  issued  to  one  Q . .  . .  P . .  .  .  together  with  the  plaintiff, 

by  the court  of  the  county  of ;  and  said  0 .  .  . . 

P. . . .  thereupon  duly  qualified  as  administrator,  and  still  is 
such,  and  living  at 

1880.  Non-joinder  of  a  co-executor. 

I.  That  the  said  M  .  .  . .  N .  .  .  .  the  testator  mentioned  in 
the  complaint,  by  his  will  duly  appointed  the  plaintiff  and 
one  0.  .  .  .  P.  . . .,  jointly,  executors  of  his  said  will. 

II.  That  on  or  about  the    day  of    ,   19.., 

letters  testamentary  thereupon  were  duly  issued  to  said 


Chapter  LXXXV.]  1391  [Forms  1881-1884. 

0....   P....    [together  with  the  plaintiff]  by  the    

court  of  the  county  of ;  and  he  thereupon  duly  quahfied 

as  executor,  and  still  is  such,  and  living  at 

1881.  Non-joinder  of  tenant  in  common,  as  to  part  of  the 

goods. 

That  as  to  the  taking  [or  converting]  of  said  [here  mention 
the  part  as  designated  in  the  complaint;  or,  if  not  there  desig- 
nated, say:  a  part  of  the  goods  mentioned  in  the  complaint 
to-wit,  a  wagon  and  harness],  the  same  were  at  the  time  of 
said  supposed  trespass  the  property  of  the  plaintiff  and  one 
M. . . .  N. . . .,  as  tenants  in  common,  and  not  of  the  plain- 
tiff alone. 

II.     That  the  said  JVI N is  still  living  at 

1882.  Joint  interest  in  plaintiff  and  a  third  person. 

I.  That  the  plaintiff  had  not,  at  the  time  of  the  alleged 
grievances  in  the  complaint  mentioned  [nor  at  any  time 
since]  any  title  to  or  interest  in  the  [property,  the  subject  of 
the  action]  therein  mentioned,  except  jointly  and  undividedly 
with  M N and  0 P 

II.  That  said  M N...  and  0 P are  still 

living  at 

1883.  Non- joinder  of  necessary  defendant. 

That  the  said  work  and  labor  were  done,  and  money  was 
paid  by  the  plaintiff,  at  the  request  of  the  defendant,  jointly 
with  one  M . . . .  N . . . . ,  who  is  still  living  at 

1884.  Partnership  of  defendants  with  a  third  person. 

I.  That  at  the  time  of  the  making  of  the  contract  men- 
tioned in  the  complaint,  these  defendants  were  in  partner- 
ship with  one  M N ,  under  the  firm  name  of  Z . . . . 

N....  &  Co. 

II.  That  said  note  was  made  by  these  defendants  jointly 
with  said  M . . .  .  N .  .  . . ,  and  not  otherwise  [which  the  plain- 
tiffs then  well  knew]. 

III.  That  said  M N is  still  living  at 


Forms  1885-1889.]  1392  [Chapter  LXXXV. 

1885.  Assignment  of  cause  of  action,  by  plaintiff,  to  third 

person. 

That  after  the  sale  and  deUvery  [or  accruing  of  other  cause 
of  action]  in  the  complaint  alleged,  and  before  this  action,  the 
plaintiff  duly  assigned  his  cause  of  action  against  this  de- 
fendant arising  therefrom  [or,  said  judgment,  etc.,  or  other 
thing  in  action]  to  one  M . . . .  N .  . . .  who  then  became,  and 
still  is,  the  lawful  owner  and  holder  thereof. 

1886.  That  plaintiff  has  been  adjudged  a  bankrupt. 

That  after  the  claim  as  set  forth  in  the  complaint  had  ac- 
crued, and  before  the  commencement  of  this  action,  the 
plaintiff  was  duly  adjudged  a  bankrupt  in  the  [name  the 
court]  and  one  E . . . .  F. . . .  was  by  said  court  duly  appointed 
a  trustee  in  bankruptcy  of  the  plaintiff,  and  plaintiff  there- 
upon and  pursuant  to  the  direction  of  the  said  court  assigned 
all  his  property,  including  the  claim  alleged  in  the  complaint, 
to  said  E . . . .  F . . . .  as  such  trustee. 

1887.  That  plaintiff  has  an  adequate  remedy  at  law. 

That  the  plaintiff  herein  has  an  adequate  remedy  at  law 
for  damages  against  this  defendant,  who  is  financially  sol- 
vent and  able  to  respond  in  damages  for  the  breach  of  any 
contract  to  which  he  is  a  party,  and  that  said  plaintiff 
cannot  maintain  this  action  in  equity  by  reason  of  such 
facts. 

1888.  Action  premature,  credit  unexpired. 

That  the  goods  described  in  the  complaint  were  sold  on 

a  credit  of  ....  months  from ,  19.  .,  which  time  had 

not  expired  when  this  action  was  commenced. 

1889.  Extension  of  time  of  payment. 

That  prior  to  the  commencement  of  this  action  the  plain- 
tiff agreed  with  the  defendant  in  consideration  of  the  sum 
of dollars  then  paid  [or  in  consideration  of  the  trans- 
fer by  defendant  to  plaintiff  of  [describe  collateral]  to  extend 

the  time  of  payment  of  said  debt  until ,  19. .,  which 

period  has  not  yet  expired. 


CHAPTER  LXXXVI. 


GENERAL  DEFENSES  ON  THE  MERITS. 


1890.  Accord  and  satisfaction. 

1891.  The     same,     acceptance     of 

note. 

1892.  Arbitration  and  award. 

1893.  Estoppel. 

1894.  Estoppel    by    former    judg- 

ment. 

1895.  The  same,   pleading  foreign 

judgment  in  detail. 

1896.  Statute  of  limitations,  ordi- 

nary form. 


1897.  Statute  of  limitations  in  tort 

action. 

1898.  Foreign  statute  of  limitations 

in  tort  action. 

1899.  Release. 

Specific  denial  of  demand. 

Statute  of  limitations  in  ac- 
tion where  statute  does  not 
run  until  plaintiff's  dis- 
covery of  the  facts. 

Estoppel  of  owner  of  real 
estate. 


1900 
1901 


1902. 


1890.  Accord  and  satisfaction. 

That  after  making  the  contract  [or  other  instrument]  and 
the  alleged  breach  thereof  [or,  after  committing  the  said 
supposed  grievances]  in  the  complaint  mentioned  [or  in  the 
....  cause  of  action  in  the  complaint  mentioned]  and  before 

this  action,  to-wit,  on  the  ....  day  of ,  19.  .,  *  this 

defendant  delivered  to  the  plaintiff  [or,  to  A ... .  B . . . .  one 
of  the  plaintiffs,  and  said  A....  B....]  accepted  and  re- 
ceived from  the  defendant dollars  [or,  briefly  describ- 
ing the  thing  delivered,  if  not  money]  in  full  satisfaction  and 
discharge  of  the  damages  [or  moneys,  or  liability,  or  debt,  as 
may  be  appropriate]  in  the  complaint  mentioned,  and  of  all 
the  damages  by  the  plaintiff  sustained  by  reason  of  the 
non-performance  [or  non-payment,  or  neglect,  or  acts] 
therein  alleged. 

1891.  The  same,  acceptance  of  note. 

That  on ,  19. .,  plaintiff  agreed  with  defendant  to 

accept  in  full  satisfaction  of  the  claim  set  forth  in  the  com- 
plaint the  promissory  note  of  defendant  for dollars, 

payable  on  or  before ,  19.  .,  and  thereupon  defendant 

made  and  delivered  such  a  note  to  plaintiff  and  plaintiff 
accepted  and  received  the  same  in  full  satisfaction  of  said 
claim. 
88 


Forms  1892-1894.]    ^  1394  [Chapter  LXXXVI. 

1892.  Arbitration  and  award. 

I.  That  after  the  maturity  of  the  note  [or  after  the  accru- 
ing of  other  cause  of  action]  mentioned  in  the  complaint,  to- 

wit,  on  the  ....  day  of ,  19. .,  the  plaintiff  and  this 

defendant  executed  a  written  agreement,  whereby  they 
mutually  submitted  the  demand  alleged  in  the  complaint 
[among  other  controversies]  to  the  arbitration  of  one  M .... 
N .  .  .  .    who,   thereafter  and  before  the  commencement  of 

this  action,  to-wit,  on  the  ....  day  of ,  19.  .,  by  his 

award  then  duly  made  and  published,  awarded  that  [stating 
the  substance  of  the  award]. 

II.  That  the  defendant,  on  the  ....  day  of ,  19. ., 

and  before  this  action,  duly  performed  said  award  on  his 
part  by  [here  state  payment  or  tender].^ 

1893.  Estoppel.* 

For  a  further  and  separate  defense  the  defendant  alleges 
that  the  plaintiff  ought  not  to  be  admitted  to  say  [here  state 
the  matter  to  which  the  estoppel  is  interposed,  e.  g".,  that  said 
premises  belonged  to  M . .  .  .  N .  . .  .  ]  for  the  reason  that 
[here  state  the  facts  showing  the  estoppel,  e.  g.,  that  the  plaintiff, 

on  or  about  the   ....  day  of ,  19.  .,  conveyed  said 

premises  to  the  defendant  by  deed,  containing  a  full  cove- 
nant of  warranty. 

1894.  Estoppel  by  former  judgment. 

That  on  the  ....  day  of ,  19 . . ,  at in  an  ac- 

tion  brought  in  the court  [or  before  M....N....,a 

justice  of  the  peace  in  and  for   ]  by  A.  .  .  .   B.  . . . 

against  C. . . .  D.  .  .  .,  for  the  same  cause  of  action  as  that 
set  forth  in  the  complaint  herein,  said  A ....  B ... .  recovered 
judgment  duly  given,  upon  the  merits  thereof,  against  said 

C .  .  .  .  D .  . .  .  for dollars  [or  state  other  relief  adjudged] 

which  judgment  still  remains  in  full  force  and  unreversed. 

1  It  is  unnecessary  to  allege  per-  must  be  alleged.  Armstrong  v. 
formance  if  the  award  directed  Masten,  11  Johnson,  189;  Brazill 
payment  of  the  amount  found  due,  v.  Isham,  12  N.  Y.  9. 
for  then  it  is  the  equivalent  of  a  ^  Estoppel  is  an  afTirmative  de- 
judgment,  but  if  the  award  is  sim-  fense,  and  to  be  available  the  fav-'ts 
ply  in  pursuance  of  a  submission  must  be  pleaded  as  new  matter, 
to  state  an  account  or  fix  a  sum,  unless  they  appear  on  the  face  of  the 
and  does  not  purport  to  direct  satis-  complaint, 
faction    or    payment,    performance 


Chapter  LXXXVL]  1395  [Form  1895. 

1895.  The  same,  pleading  foreign  judgment  in  detail 
(from  N.  Y.,  etc.,  Co.  v.  Robinson,  25  Abbott's 
N.  C.  116). 

I.  That  an  equity  suit  was  heretofore  brought  by  H. . . . 
J . . . .  [the  person  mentioned  in  the  complaint  herein  as  re- 
ceiver of  the  Erie  Railway  company]  as  such  receiver,  against 

this  defendant,  in  the   county  circuit  court,  in  the 

state  of ,  the  bill  of  complaint  wherein  prayed  for  a 

decree  by  which  it  might  be  adjudged  and  decreed,  among 
other  things,  that  this  defendant  gave  no  consideration  for 
the  ....  shares  of  stock  mentioned  in  the  contract,  "Exhibit 
A"  annexed  to  the  complaint  herein,  and  had  no  legal  or 
equitable  right  or  title  in  or  to  the  same;  that  the  actual 
title  to  the  ....  shares  of  stock  of  M . . . .  N .  .  .  .  [mentioned 

in  the  complaint  herein]  in  the company,  remained 

in  said  Erie  Railway  company;  that  this  defendant  ac- 
quired no  title  to  the  ....  shares  of  stock  allotted  to  him 
[mentioned  in  the  complaint  herein]  and  that  the  actual  title 
remained  in  the  Erie  Railway  company];  that  the  agreement, 
a  copy  whereof  is  annexed  to  the  complaint  herein,  was 
induced  by  false  and  fraudulent  representations  of  said 
defendant,  and  that  the  same  should  be  canceled  and  an- 
nulled; that  defendant  should  be  required  to  pay  to  said 

H.  . . .  J. .  .  .,  as  such  receiver,  the  sum  of dollars, 

with  the  interest  thereon,  and  for  such  further  and  other 
order  or  relief  as  the  nature  of  the  case  might  require,  and 
as  might  be  agreeable  to  equity  and  good  conscience. 

II.  That  the  said  bill  of  complaint  was  personally  sub- 
scribed by  said  H . . .   J . . .  and  verified  by  him  upon  oath 

on   ,  19..,  and  contains  all  the  allegations  material 

to  the  present  action  which  are  contained  in  the  amended 
complaint  herein,  except  that  [if  it  be  a  material  allegation] 
said  receiver  and  said  Erie  Railway  company  were  induced 
to  make  said  contract  ["Exhibit  A"  annexed  to  the  complaint 
herein]  by  reason  of  the  statements  of  this  defendant  that 
his  title  to  said  stock  was  a  good  and  clear  title,  and  that 
no  other  person  had  a  lawful  claim  thereto;  but  that  this 
matter  might  have  been  also  litigated  in  the  aforesaid  suit. 
The  paper  hereto  annexed  as  a  part  hereof  and  marked 
"Exhibit  A,"  is  a  true  copy  of  the  bill  of  complaint  in  said 
suit. 


Forms  1896-1898.]  1396  [Chapter  LXXXVI. 

III.  That  the  plaintiff  herein,  on  or  about ,  19. ., 

became  a  party  to  the  suit  mentioned  in  the  preceding 
paragraphs,  and  filed  a  supplemental  bill  of  complaint  therein 
by  leave  of  the  said  court;  that  answers  were  duly  filed  to 
the  said  bill  and  supplemental  bill  therein  by  this  defendant, 
denying  the  equities  set  up  in  said  bills;  that  a  replication 
was  duly  filed  by  the  complainant,  and  said  suit  duly  came 
on  to  be  heard  by  said  court  in  chancery,  and  each  party 
introduced  evidence  upon  said  hearing,  and  the  taking  of 
evidence  therein  was  closed,  and  thereafter,  and  on  or  about 

the  ....  day  of ,  19.  .,  the  said  bill  and  supplemental 

bill  in  said  suit  were  dismissed  by  order  of  the  said  court, 
a  copy  of  which  order  is  hereto  annexed  as  a  part  hereof  and 
marked  "Exhibit  B,"  and  that  the  recitals  in  said  order  were 
and  are  true. 

IV.  That  by  said  order  the  matters  in  this  action  were 
finally  adjudicated  and  settled,  and  that  the  plaintiff  is 
thereby  barred  from  prosecuting  or  maintaining  this  action. 

1896.  Statute  of  limitations,  ordinary  form.^ 

That  the  cause  of  action  stated  in  the  complaint  [or,  that 

as  to dollars,  part  of  the  cause  of  action  stated  in  the 

complaint,  the  same]  did  not  accrue  within  ....  years  be- 
fore the  commencement  of  this  action. 

1897.  Statute  of  limitations  in  tort  action. 

That  the  defendant  was  not  guilty  of  the  grievances  al- 
leged in  the  complaint  [or,  in  the  first  cause  of  action  in  the 
complaint]  at  any  time  within  ....  years  before  the  com- 
mencement of  this  action. 

1898.  Foreign   statute    of   limitations   in   tort   action 

(adapted  from  Eingartner  v.  Steel  Co.,  103  Wis. 
373;  79  N.  W.  433). 

For  a  further  and  separate  defense,  the  defendant  alleges 
that  the  said  personal  injury  described  in  the  complaint 

occurred  in  the  state  of and  that  at  the  time  of  the 

occurrence  thereof,  to-wit,  the   ....  day  of  ...;..,  19.., 

*  As  to  when  the  statute  of  limita-  demurrer,  see  Chapter  LXXXIII, 
tions  may  be  taken  advantage  of  by      supra,  and  notes. 


Chapter  LXXXVL]  1397  [Forms  1899-1902. 

and  at  all  times  thereafter  to  the  present  time  both  the 
plaintiff  and  this  defendant  were  and  still  are  citizens  and 

residents  of  the  state  of ,  and  that  at  the  time  of  said 

injury  there  was,  ever  since  has  been,  and  still  is  a  statute  of 

the  state  of known  as  section  , . . .  of  chapter  .... 

of  the  Revised  Statutes  of  said  state  which  provides  as  fol- 
lows [give  copy  of  section,  or  state  its  substance].  That  no 
action  was  begun  by  the  plaintiff  to  recover  on  account  of 

said  alleged  injury  in  the  said  state  of within  .... 

years  next  after  the  cause  of  action  alleged  in  said  complaint 
accrued,  nor  was  this  action  commenced  within  said  period 
of  two  years.  Wherefore  this  defendant  alleges  that  the 
said  cause  of  action  has  become  and  is  by  virtue  of  the 
operation  of  said  statute  completely  barred. 

1899.  Release. 

[As  in  first  form  in  this  chapter  to  the  *,  then  continuing]: 
the  plaintiff  [or,  the  plaintiffs,  jointly,  or,  A. . .  .  B. . . .,  one 
of  the  plaintiffs],  in  consideration  of ,  by  deed,  re- 
leased this  defendant  from  the  claim  set  up  in  the  complaint 
[or,  executed  to  this  defendant  a  release,  of  which  the  follow- 
ing is  a  copy:  [giving  copy]. 

1900.  Specific  denial  of  demand. 

The  defendant  denies  that  the  plaintiff  at  any  time  de- 
manded the  [proceeds  of  the  goods]  in  said  complaint  men- 
tioned at  any  time  prior  to  the  commencement  of  this  action. 

1901.  Statute  of  limitations  in  action  where  statute  does 

not  run  until  plaintiff's  discovery  of  the  facts. 

That  each  and  every  fact  alleged  in  the  complaint  ex- 
clusive of  paragraphs  [specifying  them]  thereof  was  discovered 
and  actually  known  by  plaintiff  on  or  before  the  ....  day 

of ,  19 . . ;  that  this  action  was  commenced  on  or  about 

the   ....   day  of ,  19. .,  and  not  within   ....  years 

from  the  time  when  plaintiff  had  actual  knowledge  of  the 
facts  upon  which  his  alleged  cause  of  action  depends. 

1902.  Estoppel  of  owner  of  real  estate. 

II.  The  defendant  for  a  second  and  further  defense  herein 
alleges  that  the  plaintiff  is  estopped  from  claiming  that  he  is 


Form  1902.]  1398  [Chapter  LXXXVI. 

the  owner  of  the  premises  described  in  the  complaint  [or 
that  he  has  a  mortgage  on  the  premises]  for  the  reason  that 
at  the  time  this  defendant  was  negotiating  for  the  purchase 
of  the  said  premises  from  one  M. . . .  N. . . .,  the  plaintiff, 
with  knowledge  that  such  negotiation  was  in  progress,  and 
in  order  to  induce  the  plaintiff  to  purchase  the  same,  stated 
to  the  defendant  that  the  said  M . . . .  N . . . .  owned  said 
premises  free  of  incumbrance,  [or  that  said  mortgage  had 
been  paid,  or  otherwise  according  to  fact]  that  the  defendant 
believed  said  statement  and  fully  relied  thereon  and  therefor 

purchased  said  premises  of  the  said  M . . . .  N and  paid 

the  sum  of dollars  therefor. 


CHAPTER  LXXXVII. 

VARIOUS  ALLEGATIONS  AND  DENIALS  RELATING 
TO  CAPACITY  TO  SUE  OR  BE  SUED. 


1903.  Denial  of  assignment. 

1904.  Allegation    of    payment    to 

assignor  without  notice. 

1905.  Denial    of   incorporation    of 

plaintiff. 

1906.  Denial  of  partnership.    (Wis- 

consin,     Minnesota     and 
Iowa.) 

1907.  Denial      of      representative 


character.    (Wisconsin  and 
Iowa.) 

1908.  Allegation  that  executor  re- 

nounced. 

1909.  Allegation     that     defendant 

was  a  special  partner. 

1910.  Allegation  of  maintenance. 

1911.  Allegation    of    colorable    as- 

signment made  only  to  give 
jurisdiction. 


1903.  Denial  of  assignment. 

The  defendant  [upon  information  and  belief]  denies  that 

the  said  [alleged  assignor]  on  the  ....  day  of ,  19 . .,  or 

at  any  other  time,  assigned  or  transferred  to  the  plaintiff  the 
said  note  and  mortgage  [or  in  case  of  a  mere  claim  or  cause  of 
action,  the  said  claim  or  cause  of  action]  described  in  the 
complaint,  and  denies  that  the  plaintiff  was  or  is  the  holder 
or  owner  thereof.  [//  the  execution  of  a  formal  instrument  of 
assignment  is  alleged  in  the  complaint,  the  above  form  should  be 
varied  so  as  to  deny  that  the  alleged  assignor  on  the  ....  day 

of ,  19. .,  or  at  any  other  time  executed  or  delivered 

to  the  plaintiff  the  alleged  assignment  of  the  said  note  and 
mortgage,  or  claim  as  in  said  complaint  alleged,  etc.] 

1904.  Allegation  of  payment  of  assignor  without  notice. 

That  on  or  about  the day  of ,  19 .  . ,  and  prior  to 

the  commencement  of  this  action  the  defendant,  without 
knowledge  or  notice  of  the  alleged  assignment  of  the  said 
note  [or  claim]  described  in  the  complaint,  paid  to  the  said 

assignor  the  full  amount  due  thereon  [or  the  sum  of 

dollars]  which  was  accepted  and  received  by  the  said  [as- 
signor] in  full  payment  and  discharge  of  said  note  [or  claim, 
or  cause  of  action]. 


Forms  1905-1907.]  1400  [Chapter  LXXXVII. 

1905.  Denial  of  incorporation  of  plaintiff. 

The  defendant,  further  answering  the  complaint  herein, 
expressly  denies  *  that  the  said  plaintiff  was  at  the  time  of 
the  commencement  of  this  action  or  now  is  a  corporation  as 
in  said  complaint  alleged. 

[This  is  doubtless  sufficient  denial  in  Wisconsin  {Wis.  Stats. 
1913  sec.  4199)  and  in  Nebraska  (Maxwell's  Code  Pleading, 
Form  511),  but  in  Minnesota,  Iowa,  A'orth  Dakota  and  South 
Dakota  there  should  be  an  affirmative  allegation  that  the  plain- 
tiff is  not  a  corporation  (Minn.  Gen.  Stats.  1913  sec.  7774;  N. 
Dak.  Rev.  Codes  1905  sec.  7362;  S.  Dak.  C.  C.  1908  sec.  414; 
Iowa  Ann.  Code  1897  sees.  3627,  3628),  and  in  these  last 
named  states  the  answer  should  proceed  as  above  to  *  and 
continue:  all  allegations  of  said  complaint  relating  to  the 
alleged  incorporation  of  the  plaintiff,  and  alleges  that  the 
plaintifT  was  not  at  the  time  of  the  commencement  of  this 
action  and  is  not  now  a  corporation  (in  Iowa  add:)  and  was 
never  incorporated  under  the  laws  of  this  state  or  of  any  other 
state  or  government.] 

[Add  verification.]    . 

1906.  Denial  of  partnership  (Wis.  Stats.  1913  sec.  4197; 

Minn.  Gen.  Stats.  1913  sec.  7175;  Iowa  Ann. 
Codel897,  sees.  3627,  3628). 

The  defendant,  further  answering  the  complaint,  expressly 

denies  that  the  said  A B and  G D were  or 

are  partners,  as  alleged  in  said  complaint,  and  on  the  con- 
trary alleges  that  the  said  A. . . .  B . . . .  and  C . . . .  D .  . . . 
were  not  at  the  time  of  the  commencement  of  this  action  and 

are  not  now  partners.     [Or,  that  the  said  A B was 

not  and  is  not  a  partner  with  the  said,  naming  the  others.] 

[Add  verification.] 

1907.  Denial  of  representative  character  (Wis.  Stats. 

1913  sec.  4200;  Iowa  Ann.  Code  1905  sees.  3627, 
3628). 

The  defendant,  further  answering  the  complaint,  expressly 

denies  that  the  plaintiff  was  on  the  ....  day  of ,  19. ., 

or  at  any  time,  appointed  executor  of  the  estate  of  E . . . . 

F deceased  [or  administrator,  or  guardian,  or  trustee,  as 

the  case  may  be],  and  denies  that  the  said  plaintiff  was  or  is 


Chapter  LXXXVIL]  1401  [Forms  1908-1910. 

now  such  executor  [or  guardian,  etc.]     [In  Iowa  add:  and 
on  the  contrary  alleges  that  the  said  plaintiff  was  never  ap- 
pointed such  executor,  or  guardian,  and  is  not  now  such 
executor,  or  guardian,  etc.] 
[Add  verification.] 

1908.  Allegation  that  executor  renounced. 

I.     That  said  executor,  after  the  death  of  the  testator,  and 

on  or  about  the  ....  day  of 19. .,  by  writing  signed 

by  him,  and  attested  by  two  witnesses,  and  proved  to  the 

satisfaction  of  the   court  of  the  county  of   , 

before  whom  said  will  was  proved,  renounced  said  appoint- 
ment as  executor  [leaving  said  co-executor,  who  is  still  living, 
sole  executor  of  said  will];  which  renunciation  was  duly 
filed  in  the  office  of  said court. 

[II.  That  said  co-executor  has  duly  qualified  and  taken 
upon  himself  the  execution  of  said  will,  and  is  now  such 
executor.] 

[Or:  II.  That  thereupon  letters  of  administration  with 
said  will  annexed  were  issued  upon  said  M . . . .   N . . . .  's 

estate  to  one  0 . . . .  P . . . .  by  the  said court,  by  an 

order  duly  made  on  the  ....  day  of ,  19. .] 

1909.  Allegation  that  defendant  was  a  special  partner. 

Defendant  alleges  that  the  firm  of  C . . . .  D . . . .  &  Co. 
was  at  all  times  referred  to  in  the  complaint,  and  is,  a  limited 
co-partnership  duly  formed  under  the  laws  of  the  state  of 

wherein  C . . . .  D . . . .  was  and  is  the  general  partner, 

and  this  defendant  E. . . .  F. . . .  was  and  is  the  special  part- 
ner, and  upon  information  and  belief  defendant  alleges  that 
if  the  note  described  in  the  complaint  was  ever  made,  the 
same  was  made  by  and  was  the  act  and  obligation  of  said 
limited  partnership. 

1910.  Allegation  of  maintenance.  •' 

I.  That  the  plaintiff  is,  and  at  the  time  when  he  pur- 
chased the  claims  in  controversy  was,  an  attorney  of  the 
court  of  this  state,  practicing  as  such  at 

II.  That  he  purchased  said  [describe  the  claims]  with  full 
knowledge  and  notice  that  the  same  were  contested  and 


Form  1911.]  1402  [Chapter  LXXXVII. 

would  be  litigated,  and  for  the  purpose  of  bringing  action 
thereon. 

1911.    Allegation  of  colorable  assignment  made  only  to 
give  jurisdiction. 

I.  That  this  action  does  not  really  and  substantially  in- 
volve a  dispute  or  controversy  properly  within  the  jursidic- 
tion  of  this  court. 

II.  That  the  assignment  or  transfer  [or,  conveyance]  by 
E . , . ,  F .  .  .  .  to  the  plaintiff,  alleged  in  the  complaint,  was 
not  absolute,  but  the  same  was  without  consideration  and 
for  the  sole  purpose  of  creating  a  case  cognizable  in  this  court, 
and  that  the  said  E. . . .  F. . . .  remains  the  real  owner  of 
said  alleged  cause  of  action,  and  said  plaintiff  has  no  right 
or  interest  therein,  but  is  prosecuting  this  action  for  the 
benefit  of  the  said  E , . . .  F . . . . 

[//  diverse  citizenship  is  falsely  alleged  by  plaintiff,  add 
denial,  as  thus:  That  said  E. . . .  F. . . .  was  not,  at  the  time 
of  the  commencement  of  this  action,  a  citizen  of  the  state  of 
,  but  he  was  then  a  citizen  of  the  state  of ] 


CHAPTER  LXXXVIII. 


DENIALS  OF  THE  CONTRACT  SUED  ON. 


1912.  Denial  of  the  contract,  gen- 

eral form. 

1913.  Denial  of  deed. 

1914.  Denial    of    conditional    de- 

livery. 


1915.  Allegation     of     delivery    in 

escrow. 

1916.  Denial  of  indebtedness. 

1917.  The  same,  admitting  part. 


1912.  Denial  of  the  contract,  general  form. 

The  defendant  denies  that  on  the   ....   day  of , 

19 .  .,  or  at  any  other  time,  he  made  or  entered  into  the  agree- 
ment mentioned  and  described  in  paragraph  one,  of  the 
complaint  herein. 

1913.  Denial  of  deed. 

The  defendant  denies  that  on  the   day  of   , 

19. .,  or  at  any  other  time,  he  executed  or  dehvered  to  the 
plaintiff  the  deed  mentioned  and  described  in  said  complaint. 

1914.  Denial  of  conditional  delivery. 

The  defendant  denies  the  allegations  of  the  complaint 
herein  whereby  it  is  alleged  that  the  said  note  [or  deedl 
described  in  said  complaint  was  executed  and  delivered  by 
the  plaintiff  upon  the  condition  or  understanding  set  forth 
in  said  complaint,  and  on  the  contrary  thereof  this  defend- 
ant alleges  that  the  said  note  [or  deed]  was  executed  and 
delivered  by  the  said  plaintiff  absolutely  and  without  con- 
dition. 

1915.  Allegation  of  delivery  in  escrow. 

I.     The  defendant  alleges  that  he  gave  said  deed  [or  other 

writing]  to  secure  the  repayment  of dollars,  then  lent 

by  the  plaintiff  to  one  M . . . .  N . . . . ,  and  that  he  delivered 
said  deed,  not  to  the  plaintiff  or  his  agent,  but  to  one  0 . . . . 
P . . . .  as  an  escrow,  to  be  kept  by  him  upon  condition  that 
if  the  said  M . . . .  N . . . .  should  within months  secure 


Forms  1916,  1917.]  1404  [Chapter  LXXXVIII. 

the  repayment  of  said  sum  of  money  to  the  plaintiff  by  a 

mortgage  upon  his  freehold  at   ;  that  then  the  said 

deed  should  be  immediately  discharged  and  annulled,  and 
returned  to  the  defendant,  and  that  only  in  case  of  default 
of  the  said  M ....  N . . . .  so  securing  the  repayment  of  the 
said  sum,  should  the  said  deed  of  the  defendant  stand  in 
force. 

II.     That  within  the  time  agreed,  and  on  the  ....  day  of 

,  19 .  . ,  said  M . . . .  N . . . .  did  secure  the  repayment  of 

the  said  sum  to  the  plaintiff  by  a  mortgage  upon  said  free- 
hold, which  the  plaintiff  then  and  there  accepted  as  such 
security;  whereby  the  deed  of  the  defendant  so  delivered  in 
escrow  became  void. 

1916.  Denial  of  indebtedness.* 

The  defendant  denies  that  he  is  now  or  was  at  the  time  of 
the  commencement  of  this  action  indebted  to  the  plaintifT 
in  the  sum  of dollars  or  in  any  other  sum. 

1917.  The  same,  admitting  part.  , 

.    The  defendant  admits  that  he  is  indebted  to  the  plaintiff 

in  the  sum  of dollars,  and  consents  that  the  plaintiff 

have  judgment  therefor,  but  as  to  the  residue  of  the  sum 
claimed  by  the  plaintiff  in  his  complaint,  the  defendant 
denies  that  he  is  now  or  was  at  the  time  of  the  commencement 
of  this  action  so  indebted. 

1  This  and  the  following  form  are  facts  showing  the  indebtedness  are 

only  proper  to  be  used  where  the  specifically    pleaded    in    the    com- 

complaint  contains  simply  a  general  plaint  they  must  be  either  generally 

allegation  of  indebtedness.     If  the  or  specifically  denied. 


CHAPTER  LXXXIX. 


INVALIDITY  OF  THE  CONTRACT  SUED  ON. 


1918. 
1919. 


1920. 
1921. 
1922. 
1923. 
1924, 
1925. 

1926. 


1927. 


1928, 


Coverture  of  the  defendant. 

That  defendant  was  a  mar- 
ried woman,  and  signed  the 
note  as  surety  only  for  her 
husband. 

Infancy  of  defendant. 

Insanity  of  defendant. 

Fraud  in  procuring  contract. 

Duress  by  imprisonment. 

Duress  by  threats. 

Statute  of  frauds,  as  to  leas- 
ing or  sale  of  lands. 

The  same,  as  to  agreement 
not  to  be  performed  within 
a  year. 

The  same,  as  to  special 
promise  to  answer  for  de- 
fault, etc.,  of  another. 

The  same,  as  to  agreement  in 
consideration  of  marriage. 


1929.  The  same,  as  to  sale  of  per- 

sonal property. 

1930.  Ultra  vires  of  corporation. 

1931.  That  the  contract  sued  on  is 

a  foreign  one,  void  by  the 
law  of  the  place. 

1932.  That  the  contract  was  a  cover 

for  a  wager. 

1933.  That  the  debt  was  for  money 

lost  at  play. 

1934.  That  the  contract  was  made 

to  compound  a  felony. 

1935.  Note   given   for  liquor  sold 

without  license. 

1936.  Usury  by  ante-dating  securi- 

ty. 

1937.  That  the  contract  was  made 

on  Sunday. 

1938.  Failure  of  consideration. 


Unless  the  illegal  character  of  the  contract  appears  upon 
the  face  of  the  complaint  the  facts  establishing  its  illegality 
must  be  distinctly  set  up  in  the  answer  in  order  to  entitle 
the  defendant  to  introduce  proof  thereof.  Such  proof  will 
not  be  admitted  under  a  mere  denial  of  the  contract. 

1918.    Coverture  of  the  defendant.* 

That  at  the  time  of  the  making  of  the  supposed  [contract] 
alleged  in  the  complaint,  this  defendant  was  [and  still  is] 
the  wife  of  one  M . . . .  N . . . .  [and  that  she  did  not  then 
have  nor  has  she  now  any  separate  property  or  business  of 
any  nature,  or  in  case  she  has  a  separate  estate  or  business. 


1  The  married  women's  acts  in 
some  tates  doubtless  eliminate  this 
defense.  No  attempt  is  here  made 
to  determine  to  what  extent  this  is 
true;  the  law  of  the  particular  state 


should  be  carefully  studied.  In 
Wisconsin  the  defense  still  seems 
available.  Wis.  Stats.  1913  sec. 
2345. 


Forms  1919-1922.]  1406  [Chapter  LXXXIX. 

and  that  the  said  supposed  contract  did  not  in  any  way 
concern  the  separate  property  or  business  of  this  defendant]. 

1919.  That  defendant  was  a  married  woman,  and  signed 

the  note  as  surety  only  for  her  husband  (adapted 
from  Emerson  Co.  v.  Knapp,  90  Wis.  34;  62  N. 
W.  945). 

That  at  the  time  this  defendant  signed  the  said  note  de- 
scribed in  the  complaint  she  was  and  still  is  a  married  woman 
and  the  wife  of  C .  . .  .  D . . . .  and  that  the  said  C .  .  .  .  D . . . . 
executed  said  notes  as  principal  maker  in  payment  of  a 
debt  then  owing  by  him  individually  to  the  plaintiff,  and 
for  no  other  consideration,  and  that  this  defendant  thereupon 
signed  said  note  at  the  request  of  and  as  surety  for  her  said 
husband  and  not  otherwise,  and  this  defendant  received  no 
consideration  for  said  note  nor  did  the  same  in  any  way 
concern  her  separate  property  or  business. 

[See  note  to  the  last  preceding  form.] 

1920.  Infancy  of  defendant. 

That  at  the  time  of  making  the  supposed  contract  [and  of 
the  delivery  of  the  goods,  or  other  consideration]  alleged,  the 
defendant  was  under  the  age  of  twenty-one  years;  to-wit, 
....  years  of  age,  and  that  the  said  supposed  contract  was 
not  entered  into  for  the  purchase  of  necessaries  for  this 
defendant  [or  that  the  said  goods  so  delivered  were  not  nec- 
essaries]. 

1921.  Insanity  of  defendant. 

That  at  the  time  of  the  making  of  the  alleged  promise  [or 
agreement,  or  of  the  executing  of  the  alleged  deed]  the  de- 
fendant was  of  unsound  mind,  and  thereby  incapable  of 
making  [or  executing],  and  of  understanding  the  same,  as 
the  plaintiff  then  well  knew. 

1922.  Fraud  in  procuring  contract. 

I.  That  the  instrument  mentioned  in  the  complaint  was 
obtained  from  defendant  by  the  plaintiff  [and  others  in 
collusion  with  him]  by  fraud  and  misrepresentations,  in 
this,  that  the  said  plaintiff  [and  one  E. . . .  F. . . .]  then  and 


Chapter  LXXXIX.]  1407  [Forms  ly23,  1924. 

there  falsely  and  fraudulently  represented  to  the  defendant 
[here  set  forth  the  alleged  false  representations  as  fully  and 
specifically  as  in  a  complaint  in  an  action  founded  upon  fraud 
or  deceit  or  an  action  brought  for  the  cancellation  of  instruments 
on  the  ground  of  fraud,  for  which  see  previous  chapters  of  this 
work  on  those  subjects]. 

II.  That  this  defendant  then  and  there  relied  upon  the 
said  false  representations  so  made,  and  believed  them  to  be 
true,  and  so  relying  and  believing,  was  thereby  induced  to 
execute  and  deliver  the  said  instrument,  and  not  otherwise. 
[//  defendant  has  received  any  consideration,  a  return  or  offer 
to  return  the  same  should  be  alleged,  and  if  affirmative  relief  be 
sought  the  defense  should  be  pleaded  as  a  counter-claim  and 
judgment  demanded,  as  for  instance]: 

WHEREFORE  the  defendant  demands  judgment  that 
the  said  instrument  be  adjudged  void  and  be  delivered  up  to 
be  cancelled,  and  for  such  further  relief  as  may  be  just  and 
equitable,  with  costs. 

1923.  Duress  by  imprisonment. 

That  the  defendant,  at  the  time  of  the  making  of  the  said 
[contract]  was  imprisoned  by  the  said  plaintiff  [and  others  in 
collusion  with  him]  and  then  and  there  detained  and  forcibly 
deprived  of  his  hberty  until,  solely  by  reason  of  the  force  and 
duress  of  such  imprisonment  and  in  order  that  he  might  be 
released  therefrom,  he  executed  and  delivered  the  said  [con- 
tract] to  the  plaintilT.  [//  affirmative  relief  by  way  of  can- 
cellation of  the  instrument  or  otherwise  is  necessary,  plead  as  a 
counter-claim,  add  allegations  as  to  return  or  readiness  to 
return  consideration,  and  demand  for  Judgment  as  in  last 
preceding  form.] 

1924.  Duress  by  threats. 

That  the  instrument  in  the  complaint  mentioned  was  ob- 
tained from  the  defendant  by  the  plaintiff  [and  others  in 
collusion  with  him]  by  duress  of  the  defendant,  in  this,  that 
the  said  defendant  then  and  there  threatened  the  defendant 
that  [here  state  specifically  the  threats  used],  and  that  the  de- 
fendant, solely  in  consequence  of  said  threats  and  in  the  fear 
that  the  plaintiff  would  execute  the  same,  made  and  de- 
livered the  said  instrument  and  not  otherwise.     [//  neces- 


l^^orms  1925-1927.]  1408  [Chapter  LXXXIX. 

sary  to  plead  as  a  counter-claim,  add  the  necessary  allegations 
and  demand  for  judgment  as  indicated  in  two  preceding  forms.] 

1925.  Statute  of  frauds,  as  to  leasing  or  sale  of  lands.^ 

That  neither  the  said  lease,  though  for  a  longer  period  than 
one  year  [or,  said  contract  for  the  sale  of  said  lands],  nor  any 
note  or  memorandum  thereof  expressing  the  consideration, 
was  ever  in  writing  and  subscribed  by  the  said  C . , , .  D . . . . 
by  whom  the  lease  [or  sale]  is  alleged  to  have  been  made,  or 
by  any  lawfully  authorized  agent  of  said  C .  .  .  .  D . . . .  [nor 
was  the  said  agreement  ever  partly  performed]. 

1926.  The  same,  as  to  agreement  not  to  be  performed 

within  a  year. 

That  although  the  said  agreement  by  its  terms  not  to  be 
performed  within  one  year  from  the  making  thereof,  neither 
said  agreement  nor  any  note  or  memorandum  thereof 
[expressing  the  consideration]  was  ever  in  writing  and  sub- 
scribed by  the  said  G D who  is  sought  to  be  charged 

therewith  [or  by  his  authorized  agent]. 

[See  note  to  preceding  form,] 

1927.  The  same,  as  to  special  promise  to  answer  for  de- 

fault, etc.,  of  another. 

I.  That  the  supposed  promise  in  the  complaint  alleged  is 
a  special  promise  to  answer  for  the  debt  [or  default,  or  mis- 

'The  statutes  of  frauds  of  the  void  unless  the  contract,  note  or 
various  states  covered  by  this  work,  memorandum,  expressing  the  con- 
though  substantially  similar,  differ  sideration,  is  in  writing.  Colo, 
in  some  particulars,  and  the  statute  Stats.  Ann.  1911  sec.  2662.  In  the 
of  the  particular  state  should  be  following  states  it  is  not  required 
carefully  examined  before  framing  that  the  written  memorandum 
the  pleading.  This  form  and  the  should  express  the  consideration: 
following  forms  are  believed  to  be  Arizona  (R.  S.  1913  sec.  3272); 
adapted  for  use  as  given  in  the  Arkansas  (Dig.  of  Stats.  1904  sec. 
states  of  Wisconsin,  Minnesota  and  3654,  3664);  California  (C.  C.  1906 
Oregon.  Wis.  Stats,  1913  sec.  2304,  sec.  1624);  Colorado  (except  as 
2307,  2308;  Minn.  Gen.  Stats.  1913  noted  above.  Stats.  Ann.  1911, 
sec.  6998,  6999,  7003;  Oregon  Laws  2662,  2663,  2666);  Idaho  (Rev. 
1910  sec.  804,  808.  In  Colorado  Codes  1908  sec.  6009);  Iowa  (Ann. 
contracts  for  leases  for  a  longer  Code  1897  sec.  4625);  Kansas  (Gen. 
period  than  one  year,  or  for  the  sale  Stats.  1909  sec.  3837);  Montana 
of  lands  or  any  interest  therein,  are  (Rev.  Codes  1907  sec.  5017);  Mis- 


Chapter  LXXXIX.]  1409  [Forms  1928,  1920. 

carriage]  of  another  person,  to-wit,  M  . . . .  N . . . .  in  said 
complaint  mentioned. 

II.  That  no  note  or  memorandum  of  such  contract 
[expressing  any  consideration]  was  made  in  writing,  or  sub- 
scribed by  the  party  to  be  charged  therewith,  to-wit,  this 
defendant  [or  by  his  authorized  agent]  [but  on  the  contrary, 
the  same  was  wholly  without  consideration]. 

[See  note  to  Form  1925.] 

1928.  The  same,  as  to  agreement  in  consideration  of 

marriage. 

That  the  said  alleged  agreement  [or  promise,  or  undertak- 
ing] in  the  complaint  set  forth  was  made  upon  consideration 
of  marriage,  and  neither  said  agreement,  nor  any  note  or 
memorandum  thereof  [expressing  the  consideration]  was 
ever  in  writing,  and  subscribed  by  the  said  C . . . .  D . . . . , 
who  is  sought  to  be  charged  therewith  [or  by  his  authorized 
agent]. 

[See  note  to  Form  1925.] 

1929.  The  same,  as  to  sale  of  personal  property. 

That  although  said  alleged  contract  was  for  the  sale  of 
goods  [or  chattels,  or  things  in  action]  for  the  price  of  fifty 
dollars  or  more,  no  note  or  memorandum  thereof  was  ever 
made  in  writing,  and  subscribed  by  the  said  C. . . .  D, .  . . 
sought  to  be  charged  thereby  [or  by  his  authorized  agent] 
nor  did  il^e  said  [buyer]  accept  and  receive  any  part  of  such 

souri  (R.  S.  1909  sec.  2781-2784);  a  lease  for  a  period  of  more  than  one 
Nebraska  (R.  S.  1913  sec.  2625,  year  or  for  the  sale  of  lands  or  any 
2630);  North  Dakota  (Rev.  Codes  interest  therein.  In  the  following 
1905  sec.  5332);  South  Dr\kota  (C.  states  leases  for  a  longer  period  than 
C.  1908  sec.  1238);  Oklahoma  one  year  or  contracts  for  the  sale  of 
(Comp.  Laws  1909  sec.  1089);  real  property  or  any  interest  in  real 
Texas  (Civ.  Stats.  Ann.  1913  art.  property  may  be  subscribed  by  an 
3965);  Utah  (Comp.  Laws  1907  sec.  agent,  but  the  authority  of  such 
2403);  Washington  (Rem.  and  Bal.  agent  must  be  in  writing,  sub- 
Code  1910  sec.  5289,  5290);  Wyom-  scribed  by  the  party  sought  to  be 
ing  (Comp.  Stats.  1910  sec.  3751,  charged:  California,  Montana, 
3752).  In  the  above  named  states  North  Dakota,  South  Dakota  and 
the  memorandum  may  in  all  cases  Oklahoma.  In  Minnesota  the  con- 
be  signed  by  an  authorized  agent,  tract  of  lease  or  sale,  when  made  by 
except  in  Nebraska,  Wyoming  and  an  agent,  is  not  entitled  to  record 
Wisconsin,  and  in  Wisconsin  an  unless  the  authority  of  such  agent 
authorized  agent  may  subscribe  to  be  also  recorded. 
89 


Forms  1930-1933.]  1410  [Chapter  LXXXIX. 

goods  [or  any  of  the  evidences  of  such  things  in  action]; 
nor  did  the  said  [buyer]  at  the  time,  pay  any  part  of  the 
purchase  money. 

[See  note  to  Form  1925.] 

1930.  Ultra  vires  of  corporation. 

I.  That  the  plaintiff  [or  said  company]  was  not  authorized 
by  law  to  take,  hold,  and  convey  real  property,  except  for 
the  following  purposes,  and  in  the  following  manner  [here  set 
forth  the  power  of  the  corporation]. 

II.  That  the  deed  alleged  in  the  complaint  was  executed 
[and  accepted]  on  the  part  of  said  corporation  for  the  purpose 
of  [here  state  purposes  and  manner  not  within  the  power]. 

1931.  That  the  contract  sued  on  is  a  foreign  one,  v:id 

by  the  law  of  the  place. 

I.  That  the  [contract]  alleged  in  the  complaint  was  made 
without  this  state,  and  in  the  state  of [or  in  the  king- 
dom of  France]  where  the  defendant  was  then  domiciled. 

II.  That  by  an  act  of  the  legislature  of  said  state,  entitled 
"An  Act,  etc.,"  passed  on,  etc.,  it  is  enacted  that  [here  set 
forth  the  law  relied  on,  and  if  there  be  exceptions,  add  allegations 
showing  that  the  contract  is  not  within  them]. 

1932.  That  the  contract  was  a  cover  for  a  wager. 

I.  That  at  the  time  of  the  alleged  contract  the  defendant 
was  not  a  dealer  in  the  merchandise  mentioned  therein, 
nor  had  he  the  possession  or  control  of  any  thereof. 

II.  That  it  was  the  intent  of  the  parties  not  to  make  any 
actual  sale  or  delivery  thereof,  but  at  the  maturity  of  said 
contract  that  the  difference  between  the  market  value  and 
the  contract  price  should  be  paid  by  one  party  to  the  other. 

III.  That  the  market  price  of  such  merchandise  at  the 
maturity  of  the  contract  was,  at  the  time  of  making  the 
contract,  contingent  and  uncertain;  and  the  contract  was  a 
mere  wager  on  the  future  market  price  thereof,  and  contrary 
to  the  statute. 

1933.  That  the  debt  was  for  money  lost  at  play. 

I.  That  the  defendant  and  the  plaintiff  played  together  at 
a  game  of  chance  called for  stakes,  upon  credit,  and 


Chapter  LXXXIX.]  1411  [Forms  1934-1936. 

not  for  ready  money;  and  at  said  gaming  the  plaintiff  won 

dollars  of  the  defendant,  which  he  did  not  pay. 

II.  That  thereafter  the  defendant  gave  the  plaintiff  the 
note  mentioned  in  the  complaint  for  said  money  so  staked 
and  lost. 

1934.  That  the  contract  was  made  to  compound  a  felony. 

I.  That  heretofore,  on  the  ....  day  of ,  19. .,  at 

one  L M. . . .  the  son  of  the  said  defendant,  had 

feloniously  [here  designate  the  crime,  e.  g.  stolen,  taken,  and 
carried  away  a  horse,  the  property  of  the  plaintifT]. 

II.  That  the  said  defendant,  in  order  to  compound  and 
settle  said  felony,  executed  the  contract  described  in  the 
complaint,  in  consideration  of  which,  the  plaintiff  and  others 
desisted  from  informing  and  prosecuting  upon  said  felony. 

III.  That  there  was  no  other  consideration  for  said  con- 
tract. 

1935.  Note  given  for  liquor  sold  without  license  (Mel- 

choir  V.  McCarthy,  31  Wis.  252). 

I.  That  the  only  consideration  for  said  note  was  for  the 
sale  of  strong  or  spirituous  liquors,  sold  by  said  [payee]  in 
quantities  less  than  five  gallons  to  said  defendant  in  the  town 

of ,  and  county  of the  said  [seller]  at  the  time 

of  such  sale,  having  no  license  for  the  sale  thereof,  as  required 
by  the  Laws  of  19.  .,  either  grocer  or  tavern  license. 

II.  That  the  said  note  was  transferred  to  the  plaintiff 
after  it  was  due,  and  without  consideration,  and  after  he  had 
full  notice  of  the  foregoing  facts. 

1936.  Usury  by  ante-dating  security. 

I.  That  he  gave  said  bond  and  mortgage  upon  a  loan 
made  to  him  by  the  plai'ntiff,  and  which  was  first  agreed  for 
on  the  ....  day  of ,  19.  .  [or  io  secure  the  purchase- 
money  of  lands  conveyed  to  him  by  the  pJaintiff  on  the  .... 
day  of ,  19 . .,  on  which  day,  and  not  before,  said  pur- 
chase-money accrued  to  the  plaintiff]. 

II.  That  the  said  bond  and  mortgage  were  ante-dated  as 

of  the  ....  day  of ,  19 . .,  upon  an  agreement  between 

the  parties  that  the  defendant  should  secure  and  pay  to  the 
plaintiff,  in  addition  to  interest  at  the  rate  of  seven  per  cent. 


Forms  1937, 1938.]  1412  [Chapter  LXXXIX. 

on  said  loan  [or  purchase-money]  from  said  day,  the  further 

sum  of dollars  as  interest  thereon  from  the  day  on 

which  said  bond  and  mortgage  bore  date,  until  the  day 
above  named,  as  a  cover  for  usury. 

III.  That  in  pursuance  of  said  usurious  agreement,  the 
said  bond  and  mortgage  were  given,  and  thereafter  said  sum 
of dollars  was  paid  by  the  said  defendant,  and  ex- 
acted and  accepted  by  the  plaintiff. 

1937.  That  the  contract  was  made  on  Sunday. 

The  defendant  alleges  that  [the  said  promissory  note  in  the 
complaint  set  forth  was  executed  and  delivered  by  this  de- 
fendant, or  the  said  goods  and  merchandise  described  in  the 
complaint  were  sold  and  delivered  to  this  defendant]  on  the 
first  day  of  the  week,  commonly  called  Sunday,  to-wit,  on 
the  ....  day  of 19 . .,  and  not  otherwise. 

1938.  Failure  of  consideration. 

I.  That  defendant  gave  the  [name  or  describe  the  contract] 
mentioned  in  the  complaint  to  plaintiff  solely  in  considera- 
tion of  the  performance  by  plaintiff  of  the  covenants  and 
conditions,  upon  his  part  contained,  in  a  written  agreement 
then  made  between  them,  of  which  the  following  is  a  copy: 
[insert  copy], 

II.  That  defendant  duly  performed  all  the  conditions 
of  said  last  named  agreement  on  his  part. 

III.  That  plaintiff  [allege  specifically  the  failure  by  the 
plaintiff  to  perform  the  covenants  of  the  agreement  as  on  his 
part  showing  the  failure  of  consideration]. 


CHAPTER  XC. 

PAYMENT,    PERFORMANCE    OR    DISCHARGE    OF 
THE  CONTRACT  SUED  ON. 


1939.  Payment  before  action,  and 

after  action. 

1940.  Payment  by  accepted  nego- 

tiable draft  which  plaintiff 
has  lost,  or  negotiated. 

1941.  Suspension   of    remedy   by 

note  or  draft  not  yet  due. 

1942.  That   plaintiff  has   taken   a 

higher  security  by  a  bond. 

1943.  The  same,  by  a  judgment. 

1944.  Denying  the  promise  as  to 

part,  and  pleading  pay- 
ment or  tender  as  to  the 
balance. 

1945.  Denying  value  claimed,  and 

pleading  payment  or  ten- 
der. 

1946.  Payment  in  services. 

1947.  That  a  mortgage  was  given 

to  secure  the  del^t,  under 
which  the  plaintiff  took 
the  mortgaged  property. 

1948.  Novation,  by  substitution  of 

new  creditor. 

1949.  The    same,    in    case    of    a 

promise  to  apply  indebt- 


edness upon  a  mortgage  by 
the  plaintiff. 

1950.  A  demand  before  or  after  the 

plaintiff's  tender. 

1951.  Performance    of    conditions 

precedent  under  statute. 

1952.  Tender  of  payment. 

1953.  Payment  of  part  and  tender 

of  balance. 

1954.  Denial  of  part,  and  tender  of 

residue. 

1955.  Compromise. 

1956.  Composition-deed. 

1957.  Rescission  ol  contract. 

1958.  By  surety,  alleging  an  altera- 

tion of  the  contract. 

1959.  Traverse  of  plaintiff's  general 

allegation  of  performance. 

1960.  Set-off. 

1961.  The  same,  by  executors. 

1962.  The  same,  in  an  action  by 

executors. 

1963.  Discharge  in  bankruptcy. 

1964.  Discharge    under    state    in- 

solvency law.  (Wisconsin.) 

1965.  Payment  by  delivery  of  prop- 

erty. 


These  defenses  are  all  affirmative  in  their  nature,  and  must 
be  specifically  pleaded.  Evidence  to  sustain  them  is  not 
admissible  under  a  general  denial. 

1939.     Payment  before  action,  and  after  action. 

That  before  this  action  and  on  or  about  the  ....  day  of 

19.  .,  this  defendant  paid  to  the  plaintiff   

dollars  in  full  [or  in  part]  payment  of  the  said  note  [or  other 
indebtedness]. 


Forms  1940,  1941.]  1414  [Chapter  XC. 

[//  payment  was  made  after  action]: 

That  after  the  commencement  of  this  action,  and  on  or 

about  the  ....  day  of ,  19.  .,  this  defendant  paid  to 

the  plaintiff  the  sum  of dollars  in  full  payment  of  the 

said  note  [or  claim]  set  forth  in  the  plaintiff's  complaint, 

together  with  the  further  sum  of dollars,  being  the 

total  amount  of  all  costs  which  had  accrued  in  this  action 
at  the  time  of  said  payment. 

1940.  Payment   by   accepted   negotiable    draft   which 

plaintiff  has  lost,  or  negotiated. 

I.  That  before  the  commencement  of  this  action  the 
plaintiff  drew  his  negotiable  draft  on  the  defendant  for  the 
amount  of  said  account  [or  other  indebtedness  alleged]  dated 

on  the   ....  day  of ,  19.,  payable  to  the   order   of 

E. . . .  F. . . .  and  indorsed  by  the  said  payee  [or  to  his  own 
order  and  indorsed  by  him]  and  due  ....  months  after  said 
date,  which  said  draft  was  thereafter  duly  accepted  by  the 
said  defendant  so  indorsed. 

[//  draft  was  lost,  continue]: 

II.  That  the  plaintiff  received  said  acceptance  on  account 
of  said  indebtedness,  and  afterwards  and  before  the  same 
became  due  and  payable  lost  the  same,  and  cannot  produce 
it  to  the  defendant. 

[If  draft  has  been  negotiated  allege] : 

II.  That  the  plaintiff  received  said  acceptance  on  account 
of  said  indebtedness,  and  afterwards,  and  before  the  same 
became  due  and  payable  indorsed  and  delivered  the  same  for 
value  to  some  person  to  the  defendant  unknown,  who  from 
thence  hitherto  has  been  and  now  is  the  bona  fide  owner  and 
holder  thereof,  and  entitled  to  sue  the  defendant  thereon. 

1941.  Suspension  of  remedy  by  note  or  draft  not  yet  due. 

That  after  the  accruing  of  the  alleged  debt,  and  before  this 
action,  the  defendant  delivered  to  the  plaintiff,  and  the 
plaintiff  received  from  him,  for  and  on  account  of  said  debt,  a 
bill  of  exchange*  drawn  by  the  plaintiff  upon,  and  accepted 
by  the  defendant  [or  a  promissory  note  made  by  the  de- 
fendant] dated  the day  of ,  19 . .,  for  the  sum  of 

dollars,  payable  to  the  plaintiff,  or  order, months 


Chapter  XC]  1415  [Forms  1942-1944. 

after  date,   **  which  period  had  not  elapsed  at  the  com- 
mencement of  this  action. 

[//  the  draft  was  drawn  by  defendant  on  a  third  person,  or 
by  one  third  person  upon  another,  insert  between  the  *  and  ** 
in  this  form,  the  following] :  drawn  by  the  defendant  [or  by 
M N .  . . .  ]  on,  and  accepted  by  0 ... .  P and  in- 
dorsed by  the  defendant,  whereby  the  defendant  [or  said 

M N ]  required  the  said  0 .  .  .  .   P .  .  .  .  to  pay  the 

defendant  or  order dollars,  ....  months  after  the  date 

thereof. 

1942.  That  plaintiff  has  taken  a  higher  security  by  a 

bond. 

I.  That  after  said  account  [or  note,  or  other  simple  con- 
tract-debt] became  due,  and  before  this  action  the  plaintilT 
and  this  defendant  agreed  that  the  defendant  should  give 
the  plaintiff  his  bond  under  seal  [or  should  confess  judgment 
to  the  plaintiff]  for  said  sum  so  due. 

II.  That  in  pursuance  of  said  agreement,  this  defendant, 

on  the   ....  day  of ,  19.  .,  gave  to  the  plaintiff  his 

bond  under  seal  in  the  penal  sum  of dollars,  condi- 
tioned for  the  payment  by  him  to  said  plaintiff  of  said  sum 

of dollars  so  due,  on  the  ....  day  of ,  19. ., 

at with  interest. 

1943.  The  same,  by  a  judgment. 

I.  [As  in  the  preceding  form.] 

II.  That  in  pursuance  of  said  agreement  this  defendant 

confessed  judgment  in  the   court  of   to  the 

plaintiff  for  said  sum;  which  judgment  was  on  the  ....  day 

of ,  19 .  .,  duly  entered  in  the  office  of  the  clerk  of  the 

court. 

1944.  Denying  the  promise  as  to  part,  and  pleading  pay- 

ment or  tender  as  to  the  balance. 

I.  The  defendant  denies  that  he  at  any  time  promised  to 
pay  the  plaintiff  for  the  goods  and  merchandise  described  in 
the  complaint  [or  for  the  services  set  forth  in  the  complaint] 

the  sum  of dollars,  and  on  the  contrary  alleges  that 

he  agreed  to  pay  the  plaintiff  therefor  the  sum  of 

dollars,  and  no  more. 


Forms  1945-1947.]  1416  [Chapter  XC. 

II.     That  on  or  about  the  ....  day  of ,  19.  .,  and 

before  the  commencement  of  this  action,  the  defendant  paid 

to  the  said  plaintiff  the  said  sum  of dollars  in  full 

payment  and  discharge  of  the  plaintiff's  said  claim. 

[Or  in  case  of  tender  before  action]:   II.     That  on  or  about 

the  ....  day  of ,  19 .  .,  and  before  the  commencement 

of  this  action,  the  defendant  duly  tendered  to  the  plaintiff 

the  said  sum  of dollars,  in  payment  of  the  plaintiff's 

said  claim,  and  that  the  said  plaintiff  then  refused,  and  has 
ever  since  refused  to  receive  the  same,  although  the  plaintiff 
ever  since  has  been  and  still  is  ready  and  willing  to  pay  the 
same  to  the  plaintiff,  and  now  brings  the  same  into  court 
and  deposits  the  same  for  the  benefit  of  the  plaintiff. 

1945.  Denying  value  claimed,  and  pleading  payment  or 

tender. 

I.  The  defendant  denies  that  the  goods  and  merchandise 
described  in  the  complaint  [or  the  services  described  in  the 

complaint]  were  or  are  of  the  value  of dollars,  as  in 

said  complaint  alleged,  and  on  the  contrary  the  defendant 

alleges  that  the  same  were  vv^orth dollars  and  no  more 

[or  did  not  exceed dollars  in  value.] 

II.  [Allege  payment  or  tender,  as  in  preceding  form.] 

1946.  Payment  in  services. 

I.  That  after  the  said  promissory  note  was  made  [or 
became  payable]  and  before  this  action,  to-wit,  on  the  .... 

day  of ,  19. .,  the  said  plaintiff  agreed  to  receive,  and 

the  said  defendant  agreed  to  give  to  the  said  plaintiff,  his 
work  as  a  carpenter,  to  the  amount  due  and  payable  on  the 
said  note,  which  said  work  was  lo  be  received  in  payment  of 
said  note. 

II.  That  the  defendant  afterwards,  according  to  the  said 
agreement,  did  for  the  said  plaintiff  carpenter  work  to  the 
full  amount  due  and  payable  en  the  said  note. 

1947.  That  a  mortgage  was  given  to  secure  the  debt;  un- 

der which  the   plaintiff  took  the  mortgaged 
property. 
I.     That  at  the  time  of  giving  said  note  [or  incurring  other 
debt  alleged]  he  gave  a  chattel  mortgage  upon  said  goods  [or 


Chapter  XC]  1417  [Forms  1948,  1949. 

briefly  designate  the  subject  of  the  mortgage,  e.  g.,  the  household 

furniture  in  his  dwelling  at   1  which  mortgage  was 

upon  condition  that  if  the  said  note  [or  other  debt]  was  not 
paid  when  due,  the  plaintiff  might  take  the  [goods]  and  dis- 
pose of  them  at  public  or  private  sale,  and  out  of  the  avails 
retain  the  amount  due  [upon  the  note],  with  costs  and  ex- 
penses, paying  over  the  surplus,  if  any,  to  the  defendant. 

XL     That  on  the  ....  day  of ,  19 . . ,  and  before  this 

action,  the  plaintiff  took  possession  of  the  [goods]  to  dispose 
of  them;  and  that  the  same  have  not  since  been  returned  to 
the  defendant. 

III.     That  said  [goods]  were  then  of  the  value  of 

dollars,  and  exceeded  the  amount  then  due  the  plaintiff  on 
said  note  [or  other  indebtedness]  together  with  the  necessary 
costs  and  expenses  of  foreclosure  of  said  mortgage. 

1948.  Novation,  by  substitution  of  new  creditor. 

That  on  the  ....  day  of ,  19. .,  at ,  at  the 

request  of  the  plaintiff,  he  made  his  promissory  note  [or,  his 

bond,  under  seal]  to  one  M . . . .  N . .  .  .  for dollars, 

in  discharge  of  the  indebtedness  stated  in  the  complaint. 

1949.  The  same,  in  case  of  a  promise  to  apply  indebted- 

ness upon  a  mortgage  by  the  plaintiff. 

I.  That  before  the  delivery  by  the  plaintiff  to  the  de- 
fendants of  the  goods  in  the  complaint  mentioned,  the  said 
goods,  or  part  thereof,  were  mortgaged  by  the  plaintiff  to  one 
M. . . .  N. . . .,  who,  by  virtue  of  said  mortgage,  had  a  lien 
and  control  over  the  said  goods,  and  the  said  plaintiff  was 
unable  to  deliver  them  to  the  defendants;  and  in  order  that 
he  might  deliver  said  goods  to  the  defendants,  freed  and 
discharged  from  the  said  mortgage,  and  all  claim  and  lien  of 
the  said  M . . . .  N . . . .,  it  was  then  and  there  agreed  by  and 

between  the  defendants  and  the  plaintiff  and  said  M 

N . . . . ,  that  in  consideration  that  he,  the  said  M .  . . .  N . . . . , 
should  and  did,  at  the  request  of  said  plaintiff,  release  the 
said  goods  of  and  from  all  his  lien  and  claim  thereon,  to  the 
end  that  the  same  might  be  delivered  by  the  plaintiff  to 
the  defendants  free  of  said  mortgage  and  hen;  that  the  de- 
fendants should,  before  payment  for  said  goods,  deduct  and 
retain  out  of  any  moneys  that  should  be  or  become  due  from 


Forms  1950,  1951.]  1418  [Chapter  XC. 

them,  enough  to  be  applied  to  satisfy  and  discharge,  so  far 
as  the  same  would  extend,  any  sum  which  at  the  time  of  such 
payment  should  be  due  from  plaintiff  to  M . . . .  N . . . .  on 
said  mortgage. 

II.  That  the  said  M. . . .  N. . . .,  relying  on  such  agree- 
ment, and  in  consideration  thereof,  did,  after  the  making  of 
said  agreement,  and  before  the  delivery  of  said  goods  to  the 
defendants,  and  at  the  request  of  said  plaintiff,  release  and 
discharge  the  said  goods  from  the  said  mortgage,  and  his 
claim  or  lien  thereon. 

III.  That  afterwards,  upon  an  accounting  between  the 
parties,  there  was  found  due  from  the  plaintiff  to  the  said 

M....  N a  sum  exceeding  the  amount  due  from  the 

defendants;  namely,  the  sum  of dollars,  and  interest 

thereon  from  the  ....  day  of ,  19. .,  and  of  which 

the  defendants  then  and  there  had  notice. 

IV.  That  the   defendants  thereupon   paid  to  the   said 

M N [or,  at  the  request  of  said  M N ,  held 

and  retained  to  and  for  his  use  and  benefit]  the  said  sum  due 
from  the  defendants  in  payment  and  satisfaction,  so  far  as 
the  same  would  extend,  of  the  said  then  existing  indebted- 
ness of  the  plaintiff  to  the  said  M . . . .  N . . . . ,  and  which  the 
said  M . . . .  N . . . .  was  then  and  there  ready  and  willing 
should  be  applied,  and  it  was  applied,  in  satisfaction  and 
discharge,  so  far  as  the  same  would  extend,  of  the  said  then 

indebtedness  of  the  said  plaintiff  to  said  M N in 

pursuance  of  the  said  agreement. 

1950.  A  demand  before  or  after  the  plaintiff's  tender. 

I.  That  before  the  making  of  the  tender  alleged  [or,  after 
the  making  of  the  tender  alleged,  and  before  this  action],  and 
on  the  ....  day  of ,  19 . . ,  at the  defendant  re- 
quested the  plaintiff  to  pay  him  said  sum  [or,  to  deliver  to 
him  said  deed,  or  to  perform  the  act  in  question,  according  to 
the  fact]. 

II.  That  the  plaintiff  then  and  ever  since  refused  to  pay 
[or,  to  deliver]  the  same. 

1951.  Performance  of  conditions  precedent  under  stat- 

ute.^ 
That  before  the  commencement  of  this  action  the  defend- 


Chapter  XC]  1419  [Forms  1952-1954. 

ant  duly  performed  all  the  conditions  of  the  contract  set 
forth  in  the  complaint  on  his  part  to  be  performed. 

1952.  Tender  of  payment.' 

I.  That  before  this  action,  and  on  the  ....  day  of 

19..,  at    this  defendant  tendered  to  the  plaintiff 

dollars  in  payment  of  said  note  and  interest  [or  other 

indebtedness],  but  he  refused  to  receive  the  same. 

II.  That  this  defendant  has  ever  since  remained,  and 
still  is,  ready  and  willing  to  pay  to  the  plaintiff  said  sum; 
but  the  plaintiff  has  hitherto  refused  to  receive  the  same. 

III.  That  this  defendant  now  brings  the  said  sum  of 
......  dollars  into  this  court  [or  if  already  paid  into  court: 

that  this  defendant  has  paid  said  sum  of dollars  into 

this  court  in  this  action]  ready  to  be  paid  to  the  plaintiff,  if 
he  will  accept  the  same. 

1953.  Payment  of  part  and  tender  of  balance. 

I.  That  on  or  about  the  ....  day  of ,  19. .,  and 

before  the  commencement  of  this  action,   this   defendant 

paid  to  the  plaintiff dollars,  in  part  payment  of  the 

said  note  [or  account,  or  other  indebtedness]. 

II.  As  to  the  residue  of  said  claim,  the  defendant  says 

that  on  the  ....  day  of ,  19 . .,  at he  tendered 

[continue  as  in  preceding  form].  ^ 

1954.  Denial  of  part,  and  tender  of  residue. 

I.  [As  in  Form  1944  or  1945.] 

II.  That  before  this  action,   and  on  the    ....   day  of 

1  This  general  method  of  pleading  Dak.  C.  C.  P.  1908  sec.  139;  Okla. 

performance  of  conditions  preced-  Comp.  Laws  1909  sec.  5662;  Oregon 

ent  is  generally  authorized  by  ex-  Laws   1910  sec.   88;   Utah   Comp. 

press  statute.    Wis.  Stats.  1913  sec.  Laws  1907  sec.  2991;  Wash.  Rem. 

2674;  Ariz.  R.  S.  1913  sec.  431 ;  Ark.  and  Bal.  Code  1910  sec.  288;  Wyo. 

Dig.  of  Stats.  1904  sec.  6133;  Cal.  Comp.  Stats.  1910  sec.  4411. 

C.  C.  P.  1906  sec.  457;  Colo.  Code  ^  Y\u\e  XV  of  the  Circuit  Rules  for 

Ann.  1911  sec.  72;  Idaho  Rev.  Codes  Wisconsin  provides  money  tendered 

1908  sec.  4212;  Iowa  Ann.  Code  must  be  paid  into  court  and  a  cer- 
1897  sec.  3626;  Kans.  Gen.  Stats.  tificate     showing     such     payment 

1909  sec.  5717;  Mont.  Rev.  Codes  served  on  the  opposite  party  within 
1907  sec.  6572;  Minn.  Gen.  Stats.  five  days  after  the  pleading  is 
1913,  sec.  7776;  Mo.  R.  S.  1909  sec.  served,  or  the  tender  becomes 
1836;  Neb.  R.  S.  1913  sec.  7696;  N.  nugatory. 

Dak.  Rev.  Codes  1905  sec.  6872;  S. 


Forms  1955-1957.]  1420  [Chapter  XC] 

,  19 . . ,  at he  tendered  to  the  plaintiff 

dollars  in  payment  of  said  sum;  but  he  refused  to  receive  the 
same. 

Ill  and  IV.     [As  in  paragraphs  II  and  III  of  Form  1952.] 

1955.  Compromise. 

I.  That  before  the  commencement  of  this  action,  the 
plaintiff  having  demanded  said  sum  [or  said  goods,  or  other- 
wise] from  the  defendant,  the  defendant  refused  to  pay  the 
same,  because  [here  state  facts  showing  the  claim  a  doubtful 
one]. 

II.  That  the  parties  thereupon  agreed  to  compromise 
said  claim,  and  that  the  defendant  should  pay,  and  the 
plaintiff  accept   dollars  in  satisfaction  thereof. 

III.  That  on  the day  of ,  19.  .,  in  pursuance 

of  said  agreement,  the  defendant  did  pay  and  the  plaintiff 

accepted  said  sum  of dollars  in  full  satisfaction  of  the 

plaintiff's  said  claim. 

1956.  Composition-deed. 

I.  The  defendant  admits  that  on  the  ....  day  of , 

19.  .,  he  was  indebted  to  the  plaintiff  as  alleged  in  the  com- 
plaint. 

II.  The  defendant  further  says  that  afterwards,  and  on  or 

about  the  ....  day  of ,  19 . .,  the  plaintiff,  by  his  deed 

under  seal,  agreed  with  the  defendant  that  the  plaintiff  would 
accept  twenty-five  per  cent,  of  his  said  claim,  to-wit,  the 
sum  of dollars,  then  and  there  paid  him  by  the  de- 
fendant, in  full  satisfaction  of  said  indebtedness,  and  that  he 
would  not  sue  the  defendant  on  account  thereof,  and  then 
and  there  did  accept  the  same;  and  divers  other  creditors  of 
the  defendant  then  and  there  also,  by  the  same  deed,  agreed 
to  accept,  and  did  accept,  currently  with  the  said  plaintiff, 
the  same  percentage  as  that  accepted  by  the  plaintiff,  in 
full  satisfaction  of  the  several  debts  to  such  creditors  re- 
spectively due  and  owing  from  the  defendant,  and  covenant- 
ed with  the  defendant  not  to  sue  the  defendant  for  such 
respecti'/e  debts. 

1957.  Rescission  of  contract. 

That  on  or  about  the  ....  day  of ,  19. .,  after  the 


Chapter  XC]  1421  [Forms  1958-1960. 

contract  alleged  in  the  complaint,  and  before  any  breach 
thereof,  it  was  agreed  by  and  between  the  plaintiff  and  the 
defendant  that  the  said  contract  should  be  waived,  aban- 
doned, and  rescinded;  and  they  then  waived,  abandoned,  and 
rescinded  the  same  accordingly. 


1958.  By  surety,  alleging  an  alteration  of  the  contract. 

I.  That  the  defendant  gave  said  bond  to  the  plaintiff  as 
surety  for  one  M . . . .  N . . . . ,  to  secure  the  performance,  on 
the  part  of  said  M . . . .  N .  . .  .  of  [here  state  the  principal  con- 
tract briefly;  or,  if  in  writing,  it  may  be  annexed,  and  referred 
to  as  a  part  of  the  complaint], 

II.  That  thereafter,  and  without  the  knowledge  or  con- 
sent of  this  defendant,  the  plaintiff  agreed  with  said  M .... 
N....   [by  writing  under  seal,  here  state  modification], 

1959.  Traverse  of  plaintiff's  general  allegation  of  per- 

formance. 

That  the  plaintiff  has  not  duly  performed  all  the  conditions 
of  said  contract  on  his  part,  but,  on  the  contrary  [here  may  be 
set  forth  particular  breach,  as  in  complaints;  and  if  the  pro- 
vision broken  does  not  appear  in  the  complaint,  it  may  be 
stated  thus:  although  said  contract  contained  a  provision,  of 
which  the  following  is  a  copy:  copy  of  contract],  the  plaintiff 
did  not,  etc. 

1960.  Set-off. 

The  defendant,  for  a  counter-claim  herein,  alleges  that  be- 
fore, and  at  the  time  of  the  commencement  of  this  action,  the 
plaintiff  was,  and  still  is,  indebted  to  the  defendant  in  the 

sum  of dollars,  for  the  following  cause*:  [here  state 

the  cause  of  action  relied  on  as  a  set-off],  out  of  which  said  sum 
of  money,  so  due  to  the  defendant,  he  hereby  offers  to  set  off 
to  the  plaintiff  so  much  as  will  be  sufficient  to  satisfy  the 
plaintiff's  damages,  if  any,  in  respect  to  the  alleged  matters 
complained  of  [or,  if  the  cause  of  action  in  the  complaint  is 
admitted,  say,  sufTicient  to  satisfy  the  sum  so  due  to  the 
plaintiffl. 


Forms  1961,  1963.]  1422  [Chapter  XC. 

1961.  The  same,  by  executors. 

The  defendant,  for  a  counter-claim  herein,  alleges  that  the 
plaintiff  before,  and  at  the  time  of  the  death  of  the  said 
M....  [the  defendanfs  testator],  was  indebted  to  the  said 
M . . . .  [or,  was  at  and  before  the  commencement  of  this 
action  indebted  to  the  estate  of  the  said  M. . . .],  and  still  is 
so  indebted  to  the  estate  of  the  said  M . . .  .  in  the  sum  of 

dollars  for  the  following  cause  [here  state  the  cause  of 

action  relied  on  as  a  set-off;  and  conclude  as  in  the  preceding 
form  from  the  *]. 

1962.  The  same,  in  an  action  by  executors. 

The  defendant,  for  a  counter-claim  herein,  alleges  that  the 
said  M. . . .  [the  plaintiff's  testator],  before  and  at  the  time  of 
his  death,  was  indebted  to  the  defendant  [or,  if  the  executors- 
plaintiff  were  indebted  in  the  representative  capacity,  before 
and  at  the  time  of  the  commencement  of  this  action,  the 
plaintiffs,  as  the  executors  of  M . . .  .  were,  and  still  are,  in- 
debted to  the  defendant]  in  the  sum  of dollars,  for  the 

following  cause  [continue  as  in  preceding  form]. 

1963.  Discharge  in  bankruptcy. 

I.  The  defendant  alleges  that  on  the  ....  day  of , 

19. .,  and  for  more  than  six  months  immediately  prior  there- 
to, he  was  a  resident  of  the  city  or in  the  county  of 

and  state  of ,  within  the  jurisdiction  of  the 

United  States  district  court  for  the  ....  district  of 

and  that  on  said  date  he  was  insolvent  and  a  bankrupt  with- 
in the  meaning  of  the  act  of  Congress  entitled  "An  Act  to 
establish  a  Uniform  System  of  Bankruptcy  throughout  the 
United  States,"  approved  July  1,  1898,  and  then  and  there 
owed  debts  which  had  not  been  created  in  consequence  of 
fraud,  embezzlement,  misappropriation,  or  defalcation  as  a 
public  officer,  or  as  an  executor,  administrator,  guardian,  or 
trustee,  or  while  acting  in  any  other  fiduciary  capacity,  and 
which  he  was  unable  to  pay. 

II.  That  on  said  ....  day  of ,  19 .  . ,  defendant  filed 

in  the  district  court  of  the  United  States  for  the  ....  district 

of a  petition,  wherein  he  set  forth  that  for  the  greater 

portion  of  six  months  next  immediately  preceding  the  filing 
of  his  said  petition,  he  had  been  a  resident  of  the  said  city  of 


Chapter  XC]  1423  [Form  1963. 

within  said  judicial  district,  and  that  he  owed  debts 

which  he  was  unable  to  pay  in  full;  and  wherein  was  set  forth 
a  list  of  his  creditors  and  the  places  of  their  respective  resi- 
dence, and  that  said  debts  were  not  created  by  his  fraud, 
embezzlement,  misappropriation  or  defalcation,  while  act- 
ing as  a  public  ofTicer  or  as  an  executor,  administrator,  guard- 
ian, or  trustee,  or  in  any  fiduciary  capacity;  and  wherein 
was  also  set  forth  an  accurate  inventory  of  all  his  property 
both  real  and  personal,  including  his  rights,  credits  and 
effects  of  every  kind  and  nature,  which  petition  was  duly 
verified  by  his  oath,  and  wherein  he  prayed  that  he  might 
be  adjudged  by  said  court  to  be  a  bankrupt  within  the  pur- 
view of  the  act  of  congress  aforesaid;  and  that  such  pro- 
ceedings were  thereafter  had  upon  said  petition  that  on  the 

....  day  of ,  19. .,  this  defendant  was  by  said  court 

duly  adjudged  a  bankrupt. 

III.  That  on  the day  of ,  19. .,  the  defendant 

filed  in  said  court  a  petition  praying  that  he  might  be  dis- 
charged from  all  his  debts,  and  that  a  certificate  of  such  dis- 
charge might  be  issued  to  him,  and  that  on  the  ....  day  of 

,  19. .,  notice  was  duly  issued  to  all  the  creditors  of 

defendant  and  all  parties  interested  in  said  proceedings  in 
bankruptcy,  to  appear  in  said  court  on  the    ....   day  of 

,  19. .,  and  show  cause  why  such  discharge  should  not 

be  granted. 

IV.  That  on  said day  of ,  19 .  .,  defendant 

having  coihplied  with  all  the  requirem.ents  of  the  act  of  con- 
gress relating  to  bankruptcy,  and  all  orders  of  the  court, 
was  declared  by  said  court  entitled  to  be  discharged  from  his 
debts  as  prayed  for,  and  a  decree  was  duly  made  and  entered 
by  said  court  in  said  bankruptcy  proceedings  on  said  .... 

day  of ,  19. .,  that  defendant  be  discharged  from  all 

debts  and  claims  provable  under  said  act  of  congress  against 

his  estate,  and  which  existed  on  the  ....  day  of ,,  19. ., 

except  such  debts  as  are  by  laws  excepted  from  the  operation 
of  a  discharge  in  bankruptcy,  and  a  certificate  of  said  dis- 
charge was  duly  issued  to  defendant,  a  copy  of  which  is 
hereto  attached  and  made  a  part  hereof,  marked  Exhibit  A. 

V.  That  the  cause  of  action  which  is  the  basis  of  the 
plaintiff's  complaint  was  due  and  owing  to  plaintiff  at  the 
date  of  the  filing  of  said  petition  to  be  declared  a  bankrupt, 
and  upon  the  date  of  the  said  adjudication  in  bankruptcy, 


Form  1964.]  1424  [Chapter  XC. 

and  was  included  in  the  schedule  of  debts  owing  by  said 
bankrupt  filed  with  the  aforesaid  petition.  That  said  debt 
was  a  debt  provable  against  the  estate  of  this  defendant  in 
bankruptcy  and  was  not  a  debt  created  by  his  fraud,  em- 
bezzlement, misappropriation,  or  defalcation  while  acting 
as  a  public  officer,  or  as  an  executor,  administrator  or  guard- 
ian or  trustee,  or  while  acting  in  any  other  fiduciary  capacity. 

1964.    Discharge  under  state  insolvency  law  (Chap.  80 
Wis.  Stats.  1913). 

I.     The  defendant  alleges  that  on  the  ....  day  of , 

19. .,  he  was  a  resident  of  the  city  of in  the  county  of 

,  in  said  state,  and  was  insolvent,  within  the  meaning 

of  Chapter  80  of  the  statutes  of  the  state  of  Wisconsin  for 
the  year  19. . ;  and  that  on  said  day  he  made,  executed  and 
delivered  to  one  G . . . .  H . . . . ,  then  a  resident  of  said  state,  a 
voluntary  assignment  of  all  his  property,  real  and  personal, 
for  the  benefit  of  and  in  trust  for  his  creditors;  that  before 
taking  upon  himself  the  trusts  conferred  upon  him  by  said 
assignment,  the  said  G. . . .  H. . . .  delivered  to  the  county 

judge  of county  his  bond,  with  two  sufficient  sureties, 

duly  executed  and  conditioned  according  to  law,  in  the  sum 

of dollars,  being  a  sum  greater  than  the  whole  amount 

of  the  nominal  value  of  the  assets  of  the  defendant  so  as- 
signed, which  bond  was  duly  approved  according  to  law. 
That  the  said  assignee  G. .  .  .  H .  . . .,  was  not  and  is  not  a 
creditor  of  this  defendant,  that  he  duly  consented  in  w  riting 
to  take  upon  himself  the  faithful  discharge  of  the  several 
trusts  specified  in  said  assignment;  that  a  full  and  true  copy 
of  said  assignment,  indorsed  with  such  consent,  was  pre- 
sented to  the  said  county  judge  and  certified  by  him  to  be 
a  true  copy  of  the  original  assignment,  and  of  the  whole 
thereof,  and  thereupon  the  said  copy  of  said  assignment, 
together  with  the  said  bond,  were  duly  filed  in  the  office  of 

the  clerk  of  said  court  of county,  and  said  county 

judge  having  first  indorsed  upon  said  copy  of  said  assignment 
his  further  certificate  that  the  said  assignee  did  in  his  pres- 
ence indorse  upon  the  same  his  consent,  as  provided  by  sec- 
tion 1696  of  said  statutes,  and  that  all  the  proceedings  re- 
quired by  law,  and  especially  by  chapter  80,  were  duly  had 
and  taken. 


Chapter  XC]  1425  [Form  1964. 

II.  That  within  twenty  days  after  the  execution  of  the 
said  assignment  this  defendant  made  and  filed  in  the  ofTice  of 
the  clerk  of  said  court  a  correct  inventory  of  his  assets,  and  a 
list  of  his  creditors,  stating  the  place  of  residence  of  each 
creditor  and  the  amount  due  to  each,  which  inventory  and 
list  were  each  verified  by  the  oath  of  the  defendant  and  had 
affixed  thereto  a  certificate  of  the  said  G. . . .  H. . . ,  that  the 
same  were  correct  to  his  best  knowledge  and  belief,  and  that 
the  name  of  the  plaintiff,  with  his  place  of  residence  and  the 
amount  due  to  him  upon  the  claim  set  forth  in  the  complaint 
was  included  in  said  list;  that  within  twenty-two  days  after 
the  execution  of  said  assignment,  as  this  defendant  is  in- 
formed and  believes,  the  said  G . . . .  H . . , .  as  assignee 
aforesaid,  gave  notice  of  the  making  of  said  assignment,  and 
of  the  post  office  address  of  said  assignee,  and  that  every 
creditor  of  the  said  defendant  was  required  to  file,  within 
three  months,  with  said  assignee  or  the  clerk  of  said  circuit 
court,  naming  him  and  giving  his  post  office  address,  on 
pain  of  being  debarred  of  dividend,  an  affidavit  setting  forth 
his  name,  residence  and  post  office  address,  and  the  nature, 
consideration  and  amount  of  his  debt,  over  and  above  all 
off-sets;  that  such  notice  was  given  by  publishing  the  same 
once  in  each  week  for  three  successive  weeks  in  a  newspaper, 

to-wit,  the  Q . . . .  Z . . . .  in  the  said  county  of and 

by  mailing  a  copy  of  said  notice  to  each  creditor  of  the  de- 
fendant at  his  residence  of  whom  the  said  assignee  had  infor- 
mation, and  that  a  copy  of  said  notice  was  duly  mailed  to  the 
plaintiff. 

III.  That  at  the  expiration  of  three  months  from  the  first 

publication  of  said  notice,  and  on  the  ....  day  of , 

19 . . ,  said  assignee  filed  with  the  clerk  of  said  court  due  proof 
of  publication  of  the  same,  with  a  list  of  the  creditors  to 
whom  such  notice  was  mailed,  with  the  dates  thereof,  re- 
spectively, verified  by  his  affidavit,  and  also  a  list  of  the 
creditors  from  whom  affidavits  of  claims  had  been  received 
by  himself  or  said  clerk,  stating  the  names,  residences,  and 
amounts  claimed,  respectively,  together  with  all  affidavits 
of  claims  by  him  received. 

IV.  That  this  defendant,  desiring  to  be  discharged  from 
his  said  debts,  did  within  one  year  after  the  filing  of  the  copy 
of  his  assignment  in  the  office  of  the  clerk  of  the  circuit  court 
as  aforesaid,  and  before  the  final  settlement  of  the  accounts  of 

90 


Form  1965.]  1426  [Chapter  XC. 

said  assignee,  file  in  the  office  of  the  clerk  of  said  circuit  court, 
and  did  present  to  said  circuit  court  his  application  for  dis- 
charge from  his  debts,  addressed  to  said  court,  in  which 
application  he  stated  the  date  of  the  filing  of  such  assignment 
in  the  clerk's  office  where  the  same  was  filed,  with  name  and 
post  office  address  of  the  said  claim  and  of  the  assignee 
named  in  such  assignment,  which  application  was  signed  by 
this  defendant  and  had  annexed  thereto  his  affidavit  sub- 
scribed and  sworn  to  by  him,  as  required  by  section  1702c 
of  said  chapter  80  aforesaid. 

V.  That  upon  the  filing  of  said  petition  as  aforesaid,  such 
proceedings  were  thereafter  taken  thereon  that  this  defend- 
ant was  by  the  said  court,  by  an  order  and  judgment  duly 

made  and  entered  by  said  court  on  the  ....  day  of , 

19.  .,  duly  discharged  from  all  his  debts  and  liabilities  ex- 
isting at  the  time  of  the  making  of  said  assignment,  to-wit, 

on  the  ....  day  of ,  19. .,  and  from  each  and  every 

one  of  the  said  debts  and  liabilities,  a  copy  of  which  order  and 
judgment  is  hereto  annexed  marked  Exhibit  A  and  made  part 
of  this  answer. 

VI.  That  thereupon  the  clerk  of  the  said  court  did  im- 
mediately enter  judgment  on  the  judgment  docket  thereof 
against  this  defendant  in  favor  of  each  of  his  said  creditors, 
including  the  plaintiff,  for  the  amount  of  his  said  claim  or 
debt  against  this  defendant,  and  also  entered  and  discharged 
all  said  judgments  upon  the  said  docket  by  the  order  of  said 
court. 

WHEREFORE  defendant  demands  that  the  complaint  of 
the  plaintiff  be  dismissed. 

1965.    Payment  by  delivery  of  property. 

That  before  the  commencement  of  this  action,  and  on  or 

about  the  ....  day  of ,  19 . .,  it  was  agreed  between 

the  plaintiff  and  defendant  that  the  defendant  should  turn 
over  and  deliver  to  the  plaintiff  one  certain  horse,  the  prop- 
erty of  the  defendant  [or  transfer  and  assign  to  the  plaintiff 
one  certain  promissory  note  executed  by  M....  N...., 
describe  note,  the  property  of  defendant,  or  otherwise  de- 
scribe the  property  according  to  the  facts],  and  that  the  plaintiff 
should  receive  the  said  [horse  or  other  property],  in  full 
payment  and  satisfaction  of  the  plaintiff's  claim  against  the 


Chapter  XC]  1427  [Form  19G5. 

defendant  described  in  the  complaint,  and  that  in  accordance 

with  said  agreement  the  defendant  did  on  the day  of 

,  19 . .,  deliver  to  the  plaintiff  said  horse  [or  assign  and 

deliver  to  the  plaintiff  said  note],  whereby  the  said  plaintiff's 
claim  became  fully  paid,  satisfied  and  discharged. 


CHAPTER  XCI. 

DEFENSES   IN  ACTIONS  FOR  MONEY  HAD  AND 

RECEIVED. 


1966.  Denial  of  loan. 

1967.  Allegationof  payment  by  sale 

of  collateral. 

1968.  Denial  of  receipt  of  money. 

1969.  Denial    of    request    to    pay 

money  to  another. 

1970.  Usury. 


1971.  Accounting  and  payment. 

1972.  Tliat  a  surety  had  collateral 

on  which  he  has  realized. 

1973.  That  plaintiff's  co-surety  has 

secured  property  of  princi- 
pal. 


1966.    Denial  of  loan. 

This  defendant  denies  that  the  plaintiff,  on  the  ....  day 
of ,  19.  .  [date  mentioned  in  the  complaint],  or  at  any- 
other  time,  loaned  to  the  defendant  the  money  described  in 
the  complaint,  or  any  part  thereof. 

1987.    Allegation  of  payment  by  sale  of  collateral. 

The  defendant  alleges  that  on  or  about  the  ....  day  of 

,    19..,   he   delivered   to   the   plaintiff    [describe   the 

property],  as  collateral  security  for  the  repayment  of  the  said 
loan  [or,  to  indemnify  the  said  plaintiff  against  all  liability 
arising  from  the  execution  of  the  undertaking],  described  in 

the  complaint,  and  that  on  or  about  the  ....  day  of , 

19. .,  the  plaintiff  sold  the  said  [describe  collateral],  and  real- 
ized upon  such  sale  and  still  retains  the  sum  of   

dollars,  which  sum  is  greater  than  the  amount  of  said  loan 
[or,  the  amount  paid  by  the  plaintiff  upon  said  undertaking], 
with  interest  thereon  up  to  the  time  of  such  sale.  [//  the 
amount  received  be  less  than  the  plaintiff's  claim,  state  the  fact 
as  a  partial  defense.] 

1968.    Denial  of  receipt  of  money. 

This  defendant  denies  that  at  the  times  named  in  the 
complaint,  or  at  any  other  time,  he  received  the  money  men- 
tioned in  said  complaint  or  any  part  thereof. 


Chapter  XCL]  1429  [Forms  1969-1972. 

1969.  Denial  of  request  to  pay  money  to  another. 

I.  This  defendant  denies  that  he  at  any  time  requested 
the  plaintiff  to  pay  any  money  to  said  [naming  the  person  to 
whom,  or  object  for  which,  the  payment  is  alleged  to  have  been 
made]. 

II.  This  defendant  denies  that  he  at  any  time  promised 
to  pay  any  money  to  the  plaintiff  on  account  of  any  money 
paid  to  the  said  M . . . .  N . . . . 

1970.  Usury. 

That  the  loan  alleged  in  the  complaint  was  made  to  the 
defendant  by  the  plaintiff  on  the  corrupt  and  unlawful 
agreement  between  them,  that  the  plaintiff  should  reserve 
and  secure  to  himself,  and  the  defendant  would  pay  to  him, 
for  the  use  of  said  sum,  a  greater  sum  than  at  the  rate  of 
[seven]  per  centum  per  annum,  to-wit  [here  state  the  interest 
or  compensation  agreed  on;  and  payment  of  it,  if  it  has  been 
paid]. 

1971.  Accounting  and  payment. 

That  on  the  ....  day  of ,  19. .,  this  defendant  ac- 
counted with  and  paid  over  to  the  plaintiff  all  moneys  re- 
ceived by  this  defendant,  up  to  that  day,  as  such  agent  of  the 
plaintiff. 

1972.  That  a  surety  had  collateral  on  which  he  has 

realized. 

I.  That  at  the  time  of  the  execution  of  the  bond  [or 
undertaking  on  appeal  or  otherwise  describe  the  obligation 
which  plaintiff  claims  to  have  paid  as  a  surety  for  defendant] 
mentioned  in  the  complaint,  defendant  deposited  with  plain- 
tiff [describe  collateral]  of  the  value  of dollars ;  that  it 

was  agreed  between  them  that,  if  the  plaintiff  should  be 
compelled  to  pay  any  sum  for  the  defendant  by  reason  of  the 
execution  of  said  bond  [or  undertaking]  plaintiff  should  sell 
such  [describe  collateral]  and  apply  the  proceeds  in  satisfac- 
tion and  discharge  of  the  money  he  should  have  so  paid  the 
defendant;  that  the  plaintiff  has  sold  the  same  and  has  re- 
ceived therefor  the  sum  of  at  least dollars,  which  he 

has  retained  and  applied  to  the  discharge  of  the  claim  al- 
leged in  the  complaint  [or  in  partial  discharge,  as  the  fact  is]. 


Form  1973.]  1430  [Chapter  XCI. 

1973.    That  plaintiff's  co-surety  has  secured  property 
of  principal. 

I.  That  on  or  about  the day  of ,  19. .,  the 

plaintiff  received  from  E . . . .  F . . . .  certain  property  of  the 

value  of dollars,  and  consisting  of  [briefly  describe]; 

that  such  property  was  delivered  to  plaintiff  by  [said  E .  .  . . 
F. . . .]  for  the  purpose  of  applying  the  same  in  satisfaction 
of  the  payment  alleged  in  the  complaint,  which  plaintiff 
then  and  there  agreed  to  do. 

II.  That  thereafter  the  plaintiff  sold  said  property,  and 

received   as  proceeds  thereof  the  sum  of    dollars, 

which  he  has  retained  and  applied  in  satisfaction  of  the 
payment  set  forth  in  the  complaint  [or  if  the  property  has 
not  been  sold  allege  that  the  plaintiff  has  retained  the  same  and 
converted  it  to  his  own  use]. 


CHAPTER  XCII. 


DEFENSES  IN  ACTIONS  FOR  GOODS  SOLD. 


1974.  Denial  of  necessaries. 

1975.  Allegation  that  credit  is  un- 

expired. 

1976.  Denial  of  plaintiff's  title. 

1977.  That  plaintiff  agreed  to  take 

note  in  part  payment. 

1978.  Counter-claim  for  breach  of 

warranty. 

1979.  Counter-claim  by  way  of  set- 

off against  plaintiff's  fac- 
tor. 

1980.  Payment   in   part,    and    de- 


ficiency in  the  goods  ex- 
ceeding the  balance,  with 
counter-claim  for  excess. 

1981.  Rescission    of    contract    by 

plaintiff. 

1982.  Title  in  a  third  party. 

1983.  Payment  in  services. 

1984.  Return  of  machine  after  trial, 

as  unsatisfactory. 

1985.  Recoupment   for   breach    of 

warranty  on  sale  by 
sample. 


1974.  Denial  of  necessaries. 

The  defendant  denies  that  the  articles  mentioned  in  the 
plaintiff's  complaint,  or  any  part  thereof,  were  furnished  to 
the  defendant's  said  wife  [or  child]  with  the  knowledge  or 
consent  of  this  defendant,  and  denies  that  the  same,  or  any 
part  thereof,  were  necessary  for  the  use  of  said  wife  [or 
child]. 

1975.  Allegation  that  credit  is  unexpired. 

The  defendant  alleges  that  said  sale  was  upon  a  credit  of 

....  months  from  the  ....  day  of 19. .,  which  time 

had  not  expired  at  the  commencement  of  this  action. 


1076.    Denial  of  plaintiff's  title. 

The  defendant  denies  that  the  goods,  wares,  and  merchan- 
dise mentioned  in  the  complaint,  or  any  part  thereof,  were 
ever  sold  by  the  plaintiff  to  this  defendant,  and  alleges  that 
no  part  of  the  said  goods,  wares,  and  merchandise  was  the 
property  of  the  plaintiff  when  sold  to  this  defendant;  but  the 
same  then  were  the  property  of  one  JM . . . .  N . . . .,  who  sold 
the  same  to  this  defendant. 


Forms  1977-1979.]  1432  [Chapter  XCII. 

1977.  That  plaintiif  agreed  to  take  note  in  part  pay- 

ment. 

I.  That  the  said  goods  were  sold  and  deUvered  to  the 
said  defendant  by  the  said  plaintiff  on  an  express  agreement, 
by  and  between  them,  that  the  said  plaintiff  should  accept 

in  part  payment  therefor,  to  the  extent  of dollars,  a 

promissory  note  for  that  sum  drawn  by  this  defendant  [or, 

by  one  M . . . .  N . . . .  ],  and  dated  on  the  ....  day  of , 

19. .,  and  payable  on  the  . .  .^.  day  of ,  19. .  [with  an 

approved  indorserj;  and  the  residue, dollars,  in  cash. 

II.  That  on  the  ....  day  of ,  19 . . ,  and  before  this 

action,  the  defendant  tendered  to  the  plaintiff  such  a  note  as 
above  described  [indorsed  by  one  0....   P....,  who  was 

then,  and  still  is,  a  merchant  at ,  in  good  credit  and 

ability,  and  an  approved  indorser],  and  is  still  ready  and 
willing  to  deliver  the  same. 

III.  That  the  defendant  refused  to  receive  the  same. 

IV.  As  to  the  residue, dollars,  the  defendant  al- 
leges [allege  payment  or  tender,  as  informs  in  chapter  XC]. 

1978.  Counter-claim  for  breach  of  warranty. 

The  defendant,  for  a  counter-claim  herein,  alleges  that  at 
the  time  of  the  sale  of  the  said  goods  in  the  complaint  men- 
tioned, the  said  plaintiff  represented  and  warranted  that 
[here  state  the  warranty  claimed  and  allege  breach  and  damage 
following  substantially  the  forms  given  in  chapter  XLIV  of 
this  work,  with  such  changes  as  may  be  necessary,  and  close 
with  demand  for  Judgment]. 

1979.  Counter-claim  by  way  of  set-off  against  plaintiff's 

factor. 

I.  The  defendant,  for  a  counter-claim  herein,  alleges  t'lat 
the  goods  mentioned  in  the  complaint  were,  with  the  privity 
of  the  plaintiff,  sold  and  delivered  to  the  said  defendant  by 

one  M in  his  own  name  as  the  sole  owner,  and  as  and 

for  his  own  goods. 

II.  That  said  M was  in  fact  the  agent  and  factor  of 

the  plaintiff  in  respect  to  said  goods. 

III.  That  the  plaintiff  did  not  appear,  and  was  not  known 
by  the  defendant  at  or  before  the  time  of  the  sale  and  de- 


Chapter  XCIL]  1433  [Form  1980. 

livery  to  be  the  owner  of  the  goods,  or  in  any  way  interested 
therein. 

IV.  That  the  defendant  bought  and  accepted  the  goods 
of  and  from  M. . . ,  as  the  true  and  sole  owner  and  seller; 
and  that  credit  for  the  said  goods  was  given  to  the  defendant 
by  the  said  M and  not  by  the  said  plaintiff. 

V.  That  the  said  M ,  before  and  at  the  time  of  the 

sale  and  delivery  of  the  said  goods  was,  and  still  is,  indebted 
to  the  defendant  for  the  following  cause  [continue  as  in  Form 
1427  from  the  *]. 

[Demand  for  judgment.] 

1980.  Payment  in  part,  and  deficiency  in  the  goods  ex- 
ceeding the  balance,  with  counter-claim  for  ex- 
cess. 

I.  For  a  counter-claim,  the  defendant  alleges  that  the 
plaintiffs  have  brought  this  action,  as  defendant  is  informed 
and  believes,  to  recover  a  balance  claimed  to  be  due  for  mir- 
rors, and  other  articles  furnished  to,  and  for  work  and  labor 
done  for,  this  defendant  by  the  plaintiffs,  on  various  days 

between  the  ....  day  of ,  19.  .,  and  the  ....  day  of 

,  19.  . ;  that  the  total  amount  of  the  account  of  said 

mirrors  and  other  articles,  and  said  work  and  labor,  as  made 

out  and  presented  by  the  plaintiffs,  was  the  sum  of 

dollars. 

II.  That  the  defendant  paid  to  the  plaintiffs  from  time  to 
time  various  sums  of  money  on  account  of  said  mirrors  and 
other  articles,  and  work  and  labor,  amounting  in  all  to  the 

sum  of dollars,  and  redelivered  to  said  agent  certain 

articles,  to-wit,  [describe  the  articles],  of  the  value  of 

dollars. 

III.  That  it  was  agreed  between  this  defendant  and  the 
plaintiffs  that  all  mirrors  furnished  to  the  defendant  should 
be  perfect  and  true  mirrors,  and  in  .every  way  satisfactory 
to  the  defendant;  and  that  if  any  of  them  upon  trial  should 
prove  to  be  untrue  or  imperfect,  the  same  should  be  taken 
back  by  the  plaintiffs,  and  others  substituted  in  their  stead. 

IV.  That  among  the  articles  furnished  by  the  plaintiffs  to 
this  defendant  under  said  agreement,  and  included  in  said 
account  was  one  pier-glass,  three  mantel  mirrors,  and  four 
gilt  cornices,  which  were  charged  in  gross  in  said  account,  at 


Form  1981.]  1434  [Chapter  XCII. 

the  price  of  dollars.     That  the  said  three  mantel 

mirrors  above  mentioned  proved,  upon  examination  and  trial, 
to  be  untrue  and  imperfect;  that  they  were  entirely  unsatis- 
factory to  this  defendant;  that  he  promptly  notified  the 
plaintiffs  of  the  deficient  and  unsatisfactory  quality  and 
character  of  said  mirrors,  and  requested  them  to  take  them 
away,  and  replace  them  with  true  and  perfect  mirrors; 
but  they  have  never  complied  with  the  request  of  this  de- 
fendant in  this  regard.  That  the  defendant  has  at  all  times 
been,  and  still  is,  ready  to  redeliver  said  mirrors  to  said 
plaintiffs.     That  the  same,  if  true,  perfect,  and  satisfactory, 

would  have  been  worth  about  the  sum  of   dollars, 

at  the  price  that  such  mirrors  were  to  have  been  furnished, 
under  the  agreement  between  the  plaintiffs  and  this  de- 
fendant; but  that  they  were  worth  at  least dollars 

less,  on  account  of  their  deficient  character.  And  the  de- 
fendant claims  that  the  deficiency  in  value  of  said  mirrors, 

to-wit,  the  sum  of dollars,  should  be  deducted  from 

said  account. 

WHEREFORE,  the  defendant  demands  that  the  said 

sum  of dollars  be  allowed  and  adjudged  as  due  this 

defendant  upon  this  counter-claim,  and  that  he  have  judg- 
ment against  the  plaintiffs  for  the  excess  thereof  over  and 
above  the  plaintiffs'  claim  herein,  and  that  he  recover  his 
costs  of  this  action. 

1981.    Rescission  of  contract  by  plaintiff. 

That  after  the  delivery  of  the  goods  named  in  the  com- 
plaint and  on  or  about ,  19. .  the  plaintiff  elected  to 

rescind  the  sale  thereof  and  demanded  from  defendant  the 
return  of  said  goods,  upon  the  ground  that  this  defendant 
had  been  guilty  of  fraudulent  misrepresentations  which  had 
induced  plaintiff  to  make  the  sale;  that  defendant  thereupon 
agreed  with  plaintiff  that  the  said  sale  might  be  rescinded, 
and  they  then  and  there  rescinded  the  same,  and  defendant 
delivered  said  goods  to  plaintiff  and  plaintiff  received  the 
same  from  defendant  in  full  satisfaction  and  discharge  of 
any  and  all  claim  arising  out  of  the  transaction  alleged  in 
the  complaint. 


Chapter  XCIL]  1435  [Forms  1982-1985. 

1982.  Title  in  a  third  party. 

Denies  that  said  goods  were  the  property  of  plaintiff  at 
the  time  of  the  alleged  sale  and  alleges  that  they  were  then 

the  property  of  one  E. . . .  F. . . .  and  that  on ,  19. ., 

the  said  E....  F....  demanded  possession  thereof  from 
defendant  and  threatened  to  begin  legal  proceedings  against 
defendant  to  obtain  possession  thereof,  [or  to  obtain  payment 
therefor],  and  thereupon  defendant  paid  to  the  said  E . . . . 
F dollars,  the  full  value  thereof. 

1983.  Payment  in  services. 

That  on ,  19 . .,  it  was  agreed  between  plaintiff  and 

defendant  that  defendant  should  render  to  plaintiff  his 
services  as  [state  capacity  in  which  services  were  to  be  rendered] 

at  the  rate  of dollars  per  day,  to  an  amount  equal  at 

such  rate  to  the  amount  of  the  plaintiff's  claim  set  forth  in 
the  complaint  and  in  payment  thereof;  that  thereafter  and 
under  said  agreement  defendant  rendered  such  services  to 
plaintiff  equal  in  value  at  such  rate  to  the  full  amount  of  such 
claim. 

1984.  Return  of  machine  after  trial  as  unsatisfactory. 

That  the  machine  described  in  the  complaint  was  sold  to 
him  by  plaintiff  upon  the  condition  that  he  might  take  it  and 
give  the  same  a  fair  trial,  and  that  if  it  did  not  work  satis- 
factorily to  him  he  might  return  it  to  the  plaintiff;  that 
defendant  took  the  machine  on  that  condition  and  gave  it  a 

fair  trial  for days,  but  it  did  not  work  satisfactorily 

to  him,  and  on ,  19. .,  he  returned  it  to  plaintiff  for 

that  reason. 

1985.  Recoupment  for  breach  of  warranty  on  sale  by 

sample. 

I.  That  the  goods  mentioned  in  the  complaint  were 
bought  by  the  defendant  of  the  plaintiff  by  samples  which 
represented  sound  and  merchantable  goods  suitable  for 
[state  what]  which  goods  plaintiff  agreed  should  in  all  respects 
be  equal  to  such  samples,  and  defendant  purchased  said 
goods,  relying  upon  plaintiff's  said  agreement. 


Form  1985.]  1436  [Chapter  XCII. 

II.  That  in  the  month  of thereafter,  plaintiff  de- 
livered to  defendant  [state  amount  delivered]. 

III.  That,  relying  upon  said  agreement  and  warranty 
made  by  plaintiff,  defendant  accepted  and  paid  for  the  goods 
so  delivered  the  contract  price,  to-wit, dollars. 

IV.  That  thereafter,  and  without  knowledge  of  their 
real  condition,  defendant  sold  and  delivered  a  portion  of  said 
goods  to  his  customers;  that  said  customers  afterwards  re- 
turned the  same  as  defective,  and  refused  to  keep  or  pay  for 
them;  that  thereupon  defendant  examined  all  of  the  said 
goods  delivered  by  plaintiff,  and  found  that  no  part  thereof 
corresponded  with  said  samples,  but  said  goods  were  im- 
perfect, unmerchantable  and  wholly  unfit  for  [state  purpose] 
and  of  little  or  of  no  value. 

V.  That  defendant  immediately  notified  plaintiff  of  the 
character  and  condition  of  said  goods  as  aforesaid,  and  offered 
to  return  the  same,  but  plaintiff  refused  to  receive  them  or 
to  return  to  defendant  the  price  paid  therefor. 

VI.  That  said  goods  are  worthless  for  the  purpose  for 

which  defendant  purchased  them,   and  are  worth    

dollars  less  than  they  would  have  been  worth  if  they  had 
been  in  all  respects  equal-  to  the  samples  exhibited  by  plain- 
tiff to  defendant,  which  said  sum  defendant  asks  shall  be 
deducted  from  the  amount,  if  any,  which  may  be  proved 
against  him  on  the  trial  of  this  action. 


CHAPTER  XCIII. 


DEFENSES  IN  ACTIONS  FOR  SERVICES. 


1986.  Accounting  and  payment. 

1987.  Counter-claim  against  carrier 

for  negligence. 

1988.  PlaintifT's  work  not  finished, 

and   architect's   certificate 


not  obtained. 

1989.  Modification  of  contract  and 

subsequent  breach. 

1990.  Deduction  for  delay  in  build- 

ing contract. 


1986.  Accounting  and  payment. 

I.  The  defendants  deny  each  and  every  allegation  in  said 
complaint,  except  what  is  hereinafter  admitted. 

II.  The  defendants,  admitting  that  said  plaintiff  did,  at 
the  request  of  defendants,  enter  into  the  service  of  the 
defendants  as  [salesman],  as  stated  in  the  complaint  allege 
that  they  did  account  with  said  plaintiff  on  the  ....  day  of 

,  19.  . ;  and  that  on  said  accounting  there  was  found 

due  said  plaintiff  only  the  sum  of dollars. 

Second.  For  a  further  defense,  the  defendants  allege  that 
before  the  commencement  of  this  action  they  paid  to  said 

plaintiff  said  sum  of dollars,  so  found  due  upon  the 

accounting  hereinbefore  alleged,  in  full  of  the  plaintiff's 
claims. 

1987.  Counter-claim  against  carrier  for  negligence. 

The  defendant,  further  answering  and  by  way  of  counter- 
claim herein,  alleges:  that  the  transportation  of  the  goods 
mentioned  in  the  complaint  was  conducted  so  badly  and 
negligently,  and  with  so  little  care,  that  by  the  mere  care- 
lessness, negligence,  and  improper  conduct  of  the  said 
plaintiff  and  his  servants  in  that  behalf,  a  part  of  the  said 

goods,  of  the  value  of  at  least dollars,  were  wholly 

lost  to  the  defendant;  and  a  part  thereof,  of  the  value  of 

dollars,  were  damaged  in  the  sum  of dollars; 

which  said  loss  and  damages,  amounting  to  the  sum  of 
dollars,  the  defendant  claims  the  right  to  counter- 
claim and  set  off  against  the  plaintiff's  demand  to  the  extent 


Forms  1988,  1989.]  1438  [Chapter  XCIII. 

thereof;  and  the  defendant  demands  judgment  against  said 

plaintiff  for  the  said  sum  of dollars,  or  so  much  thereof 

as  he  may  be  entitled  to  over  and  above  the  plaintiff's  claim. 

1988.  Plaintiff's  work  not  finished,  and  architect's  cer- 

tificate not  obtained.^ 

I.  The  defendant  alleges  that  the  said  labor  and  services 
set  forth  in  the  complaint  were  performed  by  the  said  plaintiff 
in  and  about  the  execution  and  construction  of  a  certain 
dwelling  house,  the  property  of  this  defendant,  and  were 
performed  under  the  terms  of  a  certain  written  contract 
between  plaintiff  and  defendant,  by  the  terms  of  which  it 
was  provided  [here  set  forth  provisions  of  contract  relied  on]. 

II.  That  the  said  work  was  not  completed  in  a  good  and 
workmanlike  manner,  on  or  before  the  day  limited  therefor 
in  the  said  contract,  but  on  the  contrary,  the  said  work  on 
that  day,  and  from  thence  to  the  commencement  of  this 
action,  was  and  still  is,  incomplete  and  unfinished,  in  this 
[here  state  particulars]. 

III.  That  no  certificate  from  the  said  architect,  that  the 
said  work  had  been  completed  to  his  satisfaction,  was  ob- 
tained by  the  plaintiff  before  this  action. 

1989.  Modification  of  contract  and  subsequent  breach. 

I.  That  after  the  making  of  the  agreement  alleged  in  the 

complaint,  and  on  or  about  the  ....  day  of ,  19. .,  it 

was  mutually  agreed  between  plaintiff  and  defendant  that 
said  agreement  should  be,  and  the  same  was,  then  and  there 
modified  as  follows:  [set  forth  modification  particularly  and 
fully]. 

II.  That  plaintiff  did  not  perform  the  conditions  of  said 
agreement  as  so  modified,  in  this  that  he  did  not  [state  specifi- 
cally the  failure]. 

1  Where  the  plaintiff  sets  forth  general  denial,  but  if  the  action  be 

the  contract  and  pleads  due  per-  simply  brought  to  recover  for  ser- 

formance  of  its  conditions,  failure  vices  it  will  be  necessary  to  set  out 

to   fully   complete   the   work   and  the  contract  and  plead  the  breaches 

obtain  the  architect's  certificate  will  as  in  this  form, 
probably    be    admissible    under    a 


Chapter  XCIIL]  1439  [Form  1990. 

1990.    Deduction  for  delay  in  building  contract. 

I.  That  it  was  expressly  agreed  in  the  contract  set  forth 
in  the  complaint  that  said  building  should  be  completed 

on  the  ....  day  of ,  19.  .  and  that  if  not  completed 

at  that  time  the  plaintiff  should  forfeit  from  the  contract 

price  the  sum  of dollars  per  day  for  each  day  after 

said  ....  day  of ,  19. .,  during  which  said  building 

remained  incompleted  and  that  the  same  should  be  de- 
ducted from  said  contract  price  as  liquidated  damages  for 
said  delay. 

II.  That  plaintiff  did  not  complete  said  building  until 

the day  of ,  19.  .,  a  period  of  ....  days  later 

than  agreed,  whereby  dexendant  is  entitled  to  deduct  the  sum 

of   dollars  from  the  price  mentioned  lq  the  said 

agreement. 


CHAPTER  XCIV. 

DEFENSES   IN  ACTIONS   ON  BILLS,   NOTES  AND 

CHECKS. 


1991. 

Denial   of   execution   or   ac- 
ceptance. 

1992. 

Denial  of  genuineness  of  sig- 

nature. 

2012. 

1993. 

Denial  of  indorsement. 

1994. 

Denial  of  plaintiff's   owner- 

ship. 

2013. 

1995. 

That  defendant  indorsed  as 

agent  only. 

2014. 

1996. 

Mistake  in  amount  of  note. 

1997. 

Alteration  of  the  instrument. 

1998. 

Usury  in  making  note. 

2015. 

1999. 

The  same,  another  form. 

2000, 

The    same,     another    form, 
where  tender  of  principal 
is  necessary,  and  interest 

2016. 

only   is   forfeited.       (Wis- 

2017. 

consin.) 

20C1. 

Usury,  where  interest  only  is 

forfeited. 

2018. 

2002 

Want  of  consideration. 

2003. 

Failure  of  consideration. 

2004. 

That  the  acceptance  was  for 
accommodation. 

2005. 

That  the  note  was  for  accom- 
modation, and  was  misap- 

2019. 

plied. 

2020. 

2006. 

That  the  note  or  acceptance 

2021. 

was  given  for  goods  sold. 

2022. 

but  never  delivered. 

2007. 

That  the  notes  were  giveii  for 
purchase       money,       and 
plaintiff  failed  to  convey. 

2023. 

2008. 

That  the  note  was  for  goods 
sold  by  means  of  deceit. 

2024. 

2009. 

That  the  note  was  for  goods 
sold  with  a  false  warranty. 

2025. 

2010 

Counter-claim  for  breach  of 

warranty. 

2026 

2011 

That  the  note  was  given  on  a 

purchase  of  diseased  sheep 
and  that  they  injured  other 
sheep  of  the  defendant. 

That  the  note  was  induced  by 
plaintiff's  fraud,  general 
form. 

Denial  of  transfer  to  the 
plaintiff. 

Qualified  admission  of  note, 
and  denial  of  plaintiff's 
title. 

Wrongful  transfer  by  part- 
ner. 

Denial  of  validity  of  transfer 
of  note  by  moneyed  corpo- 
ration. 

By  accommodation  indorsers, 
alleging  extension  given  to 
makers. 

That  defendant  was  a  surety, 
and  that  plaintiff  holds  col- 
lateral securities  to  which 
defendant  asks  to  be  sub- 
rogated. 

Denial  of  acceptance,  pre- 
sentment and  protest. 

Denial  of  notice. 

Denial  of  presentment. 

Denial  of  excuse  for  non- 
presentment. 

Breach  of  special  agreement 
as  to  presenting  and  giving 
notice. 

Payment  of  bill,  to  drawer, 
before  indorsement. 

Fraudulent  representations 
as  to  the  character  of  the 
instrument. 

That  note  was  given  to  com- 
pound a  felony. 


Chapter  XGIV.]  1441  [Forms  1991-1994 

1991.  Denial  of  execution  or  acceptance  (see  following 

form) . 

The  defendant  denies  that  he  [or  E F....]  at  any 

time  executed  or  delivered  the  promissory  note  [or  accepted 
the  bill  of  exchange]  set  forth  in  the  complaint. 

1992.  Denial  of  genuineness  of  signature.^ 

The  defendant  specifically  denies  that  he  at  any  time 
signed  or  executed  the  said  supposed  promissory  note  set 
forth  in  the  complaint  herein,  and  alleges  that  if  the  name  of 
this  defendant  appears  upon  said  promissory  note,  either  as 
maker  or  indorser,  the  said  signature  is  a  forgery. 

[Verification.] 

1993.  Denial  of  indorsement. 

The  defendant  denies  that  he  [or  E....  F....]  at  any 
time  indorsed  or  delivered  the  promissory  note  [or  bill  of 
exchange]  described  in  the  complaint  herein. 

1994.  Denial  of  plaintiff's  ownership. 

The  defendant  denies  that  the  promissory  note  described 
in  the  complaint  is  owned  or  held  by  the  plaintiff,  and  denies 
that  the  same  was  so  owned  or  held  at  the  time  of  the  com- 
mencement of  this  action,  and  on  the  contrary  thereof  this 
defendant  alleges  that  the  said  note  was  then  and  is  now 
the  property  of  and  held  by  one  E . . . .  F . . . . 

^  There  are  statutes  in  a  number  answer  which  was  held  sufficient  in 

of    states    providing    substantially  Ludlow,  et  al.  v.  Berry,  62  Wis.  78; 

that  unless  a  defendant  specifically  22  N.  W.  140.    See  Wis.  Stats.  1913 

deny  by  affldavit  or  verified  plead-  sec.  4192;  Ariz.  R.  S.  1913  sec.  1750 

ing  the  signature  to  a  contract  or  Ark.  Dig  of  Stats.  1904  sec.  3108 

instrument  which  is  sued  on,  the  Cal.  C.  C.  P.  1906  sec.  447,  448 

mere  production  of  the  instrument  Colo.  Code  Ann.  1911  sec.  68;  Idaho 

is  prima  facie  evidence  of  its  execu-  Rev.    Codes   1908   sec.   4200-4202 

tion.     Under  these  statutes  it  has  Iowa  Ann.   Code   1897   sec.   3640 

been  frequently  held  that  a  verified  Kans.  Gen.  Stats.  1909  sec.  5703 
general    denial    is    insufficient    to  '  Minn.  Gen.  Stats.  1913  sec.  8448 

throw  the  burden  of  proof  on  the  Mo.  R.  S.  1909  sec.  1985;  Tex.  Civ 

plaintiff.     Cowing  v.  Peterson,  36  Stats.  Ann.   1913  art.  3710;  Utah 

Minn.   130;  30  N.  W.  461.     The  Comp.  Laws  1907  sec.  2984;  Wash, 

form  here  given  is  adapted  from  the  Rem.  and  Bal.  Code  1910  sec.  1263. 
91 


Forms  1995-1997.]  1442  [Chapter  XCIV. 

1995.  That  defendant  indorsed  as  agent  only. 

I.  The  defendant  denies  that  he  ever  indorsed  the  pro- 
missory note  described  in  the  complaint  in  his  individual 
capacity,  and  denies  that  he  ever  placed  his  name  thereon 
in  any  manner,  save  as  hereinafter  particularly  stated. 

II.  This  defendant  says  that  the  following  is  a  true  copy 
of  the  promissory  note  made  by  the  said  firm  of  A. . . .  &  Co., 
and  on  which  this  action  is  brought  [copy  of  note  and  indorse- 
ment, with  addition  of  ''Treasurer''  to  defendant's  signature]. 

III.  That  at  the  time  of  the  making  and  indorsement  of 

said  note  this  defendant  was  the  treasurer  of  the   

company,  at ,  a  foreign  corporation,  duly  incorporated 

by  and  under  the  laws  of  the  state  of ;  and  that  he 

was  authorized  by  them  to  receive  the  said  note,  and  to 
indorse  the  same  to  the  plaintiffs,  as  such  treasurer,  of  all 
which  facts  the  plaintiffs  had  notice. 

IV.  That  said  corporation  was,  at  the  time  of  said  in- 
dorsement, indebted  to  the  plaintiffs  to  the  amount  of  about 

dollars,  for  goods,  wares,  and  merchandise,  furnished 

by  the  said  plaintiffs  to  the  said  corporation;  and  said  note 
was  received  and  indorsed  by  him  as  such  treasurer,  and  not 
in  his  individual  capacity,  and  was  received  by  the  plaintiffs 
as  an  obligation  of  the  said  corporation,  on  account  of  said 
precedent  debt  due  to  them  from  the  said  corporation,  and 
for  and  on  account  of  no  other  consideration  whatever,  and 
that  he  received  no  consideration  therefor. 

1996.  Mistake  in  amount  of  note. 

That  said  note  was  given  upon  a  settlement  of  account  be- 
tween the  defendant  and  the  plaintiff,  and  was  intended  by 

them  to  be  made  and  received  for  the  sum  of dollars, 

then  claimed  by  the  plaintiff  to  be  the  amount  due  him  from 
this  defendant;  but  that  when  it  was  made,  by  mistake  of  the 

parties,  given  for  the  sum  of dollars  mentioned  in  the 

complaint,  instead  of  the  sum  of dollars,  which  was 

all  that  was  due;  and  as  to  the  excess,  to-wit dollars, 

the  same  is  without  consideration. 

1997.  Alteration  of  the  instrument. 

That  after  making  [or  acceptance]  and  issue  of  said  note 
[or  bill]  and  before  this  action,  the  plaintiff  materially  altered 


Chapter  XCIV.]  1443  [Form  1998. 

the  said  note  [or  bill]  without  the  consent  of  the  defendant, 
by  adding  the  signature  of  M. . . .  N. . . .  as  a  joint  maker 

thereof  [or  by  cutting  off  the  signature  of  M N. . . ., 

who  was  a  joint  maker  thereof,  or  by  adding  the  words  "pay- 
able at ,"  or  otherwise,  as  the  case  may  be], 

1998.    Usury  in  making  note.' 

I.  That  the  note  mentioned  in  the  complaint  was  made 
and  delivered  to  the  plaintiffs  upon  the  usurious  agreement 
between  the  defendant  and  the  plaintiffs,  that  the  defendants 
should  pay  the  plaintiffs,  and  that  the  plaintiffs  should  re- 
serve and  secure  to  themselves,  for  the  loan  of  money,  a 
greater  sum  than  at  the  rate  of  ....  per  cent,  per  annum, 
to-wit,  at  the  rate  of  ....  per  cent,  per  annum  [besides  a 
commission  of  ....  per  cent.,  on  the  face  of  said  note]. 

II.  That  said  sum  was  deducted  and  reserved  from  the 
amount  of  said  note  by  the  plaintiffs,  and  the  balance  only 
paid  to  this  defendant;  that  is  to  say,  that  this  defendant 

agreed  to  pay,  and  the  plaintiffs  agreed  to  receive 

dollars  for  said  loan,  the  plaintiffs  reserving  and  securing 
to  themselves  for  the  loan  of  money  on  said  note,  until  the 
maturity  thereof, dollars. 

[The  foregoing  may  be  sufficient  in  states  where,  as  in  Minne- 
sota, usurious  contracts  are  invalid,  but  where,  as  in  other  states 
covered  by  this  work,  the  principal  may  be  recovered  and  the 
interest  alone  becomes  forfeited  there  should  be  added  another 
paragraph,  as  follows:] 

III.  The  defendant  admits  that  there  is  due  and  owing  to 
the  plaintiff  upon  said  note  the  sum  of dollars  [princi- 
pal sum].  [In  Wisconsin  insert:  and  upon  the  trial  of  this 
action  will  prove  a  tender  of  said  last  named  sum  to  the  said 
plaintiff]  but  defendant  specifically  denies  that  any  greater 

sum  than  said  sum  of dollars  is  due  the  plaintiff  upon 

said  note. 

'  The  defense  of  usury  cannot  be  governed  by  that  law  and  void 
raised  under  a  general  denial;  the  under  it.  Curtis  v.  Masten,  11 
facts  of  the  supposed  usurious  Paige  (N.  Y.)  15. 
agreement  must  be  specifically  In  the  following  states  the  in- 
pleaded.  And  when  a  foreign  usury  terest  only  is  forfeited  and  the 
statute  is  relied  on  the  foreign  law  principal  may  be  recovered:  Wis. 
must  be  set  out,  and  also  the  facts  Stats.  1913  sec.  1690-1692;  Ariz, 
which  show  that  the  agreement  was  R.  S:  1913  sec.  3505-3509;  Idaho 


Forms  1999,  2000.]  1444  [Chapter  XCIV. 

1999.  The  same,  another  form. 

That  he  gave  to  the  plaintiff  the  note  mentioned  in  said 
complaint,  in  pursuance  of  a  mutual  agreement  between  the 
plaintiff  and  defendant,  that  the  plaintiff  should  lend  the 

defendant  the  sum  of dollars  from  the  ....  day  of 

,  19 . . ,  until  the day  of ,  19 . .   [or  until 

demand],  upon  interest  at  the  rate  of  ....  per  cent,  per 
annum  [or  ....  cents  per  day  on  each  one  hundred  dollars]. 

II.     That  the  defendant  received  from  the  plaintiff 

dollars  only,  as  consideration  for  the  said  note;  the  plaintiff 
retaining dollars,  as  interest  thereon. 

[See  note  to  last  preceding  form.] 

2000.  The  same,  another  form,  where  tender  of  principal 

is  necessary,  and  interest  only  is  forfeited  (Wis- 
consin). 

As  a  partial  defense  to  this  action  the  defendant  alleges: 
I.     That  before  the  making  of  the  said  promissory  note 
described  in  the  plaintiff's  complaint,  it  was  usuriously  and 
corruptly  agreed  that  the  plaintiff  should  lend  to  the  defend- 
ant the  sum  of dollars,  and  that  the  defendant  should 

Rev.    Codes    1908   sec.    1537-1540;  contracted  for,  it  works  a  forfeiture 

Iowa  Ann.    Code   1897   sec.   3038-  of   the   entire   debt   to   the   school 

3041;  Kans.  Gen.  Stats.  1909  sec.  fund  of  the  county  where  suit  is 

4345,  4346;  Neb.  R.  S.   1913  sec.  brought,   except  in   the  case  of  a 

3350;  N.  Dak.  Rev.  Codes  1905  sec.  bona  fide  assignee  of  such  usurious 

5510-5513;  S.  Dak.  C.  C.  1903  sec.  contract;    in    Utah    (Utah    Comp. 

1417-1419;Tex.Civ.Stats.  Ann.  1913  Laws  1907  sec.  1241x-1241xll)  the 

arts.  4980,  4982;  Wash.  Rem.  and  court  may  declare  any  usurious  con- 

Bal.    Code   1910   sec.   6255;   Wyo.  tract  void  and  enjoin  prosecution 

Comp.   Stats.   1910  sec.  3359.     In  thereon. 

Wisconsin  a  tender  of  the  principal  In  California  and  Montana  the 

sum  must  be  shown  in  order  to  en-  parties  maj'  agree  in  writing  for  the 

title  the  defendant  to  any  relief.  payment   of   any   rate   of   interest 

In  Arkansas  (Ark.  Dig  of  Stats.  (Cal.  C.  C.  1906  sec.  1918;  Mont. 

1904  sec.  5389,  5390,  5393)  all  usuri-  Rev.  Codes  1907  sec.  5212)  and  the 

ous  contracts  are  wholly  void,  and  agreement  will  be  enforced;  in  Colo- 

in  Minnesota   (Minn.   Gen.   Stats.  rado  the  parties  to  any  bmd,  bill, 

1913  sec.  5807)  the  same  rule  main-  promissory'  note,   or  other  instru- 

tains  except  so  far  as  negotiable  in-  ment    of    writing,    may    stipulate 

struments  in  the  hands  of  a  bona  fide  therein  for  the  payment  of  a  higher 

holder  are  concerned.    In  Missouri  rate  of  interest  than  eight  per  cent 

(Mo.  R.  S.   1909  sec.  7182,  7183)  (the  legal  rate),  and  the  agreement 

only  the  legal  rate  can  be  recovered;  will  be  enforced.    Colo.  Stats.  Ann. 

in  Oregon  (Oregon  Laws   1910    sec.  1911  sec.  3163. 
6029-6031)  if  higher  than  legal  rate  is 


Chapter  XCIV.]  1445  [Forms  2001,  2002. 

pay  the  plaintiff,  and  that  the  plaintiff  should  receive  for 
the  loan  of  said  money  a  greater  sum  than  at  the  rate  of  ten 
dollars  on  one  hundred  dollars,  for  one  year,  to-wit,  at  the 
rate  of  ... .  dollars  on  one  hundred  dollars  for  one  year. 

II.  That  in  pursuance  of  said  agreement  the  plaintiff 
delivered  to  the  defendant  on  said  loan,  only  the  sum  of 

dollars;  and  thereupon  the  defendant  executed  and 

delivered  to  the  plaintiff  the  promissory  note  described  in  the 
complaint. 

III.  That  by  the  terms  of  the  statute  this  defendant  is 
entitled  to  be  relieved  from  said  contract  upon  payment  of 

the  said  sum  of dollars  [principal  sum],    which  sum 

this  defendant  duly  tendered  to  the  plaintiff  prior  to  the 
commencement  of  this  action,  to-wit,  on  the   ....   day  of 

,  19. .,  and  now  brings  into  court  for  the  use  of  the 

plaintiff  if  he  will  receive  it. 

2001.  Usury,  where  interest  only  is  forfeited. 

As  to  the  sum  of   dollars,  parcel  of  said  sum  of 

dollars,  in  said  complaint  demanded,  the  said  de- 
fendant admits  that  he  owes  the  said  sum  of dollars 

to  the  said  plaintiff;  but  as  to  the  sum  of dollars,  the 

residue  of  the  said  sum  of dollars,  the  said  defendant 

says  the  said  promissory  note  in  the  complaint  mentioned, 
was  given  by  the  said  defendant  to  the  said  p'laintiff  for  the 

loan  of dollars  for  ....  years,  and  no  more  and  that 

the  said  sum  of dollars  was  included  in  said  note,  as 

interest  on  the  said  sum  of dollars  for  the  said  term 

of  ....  years,  at  the  rate  of  ....  per  cent,  per  annum. 

2002.  Want  of  consideration. 

I.  The  defendant  admits  that  he  made  the  promissory 
note  as  stated  in  the  complaint,  that  the  same  was  indorsed 
by  the  payee,  and  that  the  plaintiif  is  the  lawful  owner  and 
holder  thereof,  and  that  no  part  thereof  has  been  paid. 

II.  But  defendant  alleges,  on  information  and  behef,  that 
the  plaintiff  became  the  purchaser,  holder,  and  owner  of  said 

note,  on  or  about  the  ....  day  of ,  19. .,  and  after 

the    same    became    due. 

III.  And  defendant  alleges  that  said  note  was  made,  exe- 
cuted, and  dehvered  by  the  defendant,  in  consideration  of 


Forms  2003-2005.]  1446  [Chapter  XCIV. 

the  sale  and  assignment  to  him  of  a  certain  instrument  in 
writing,  to-wit  [here  describe  the  instrument  or  the  property 
and  allege  its  worthlessness.  It  must  be  absolutely  worthless 
to  sustain  the  defense]. 

2003.  Failure  of  consideration. 

I  and  II.     [As  in  last  preceding  form.] 

III.  Defendant  alleges  that  said  note  was  made  and 
delivered  by  the  defendant  to  the  plaintiff  as  the  purchase 
price  of  a  certain  horse  [or  certain  goods  and  merchandise] 

which  the  plaintiff  on  the  ....  day  of ,  19. .,  sold  and 

delivered  to  this  defendant,  and  not  otherwise. 

IV.  That  in  truth  and  in  fact  the  said  plaintiff  did  not 
own  the  said  [describe  property]  at  the  time  of  such  pretended 
sale  and  delivery,  but  the  same  was  then  the  property  of 

E . . . .  F . . . . ,  who  thereafter  and  on  the  ....  day  of 

19. .,  recovered  the  same  from  this  defendant  by  a  judgment 
duly  given  in  his  favor  in  an  action  of  replevin. 

V.  That  defendant  has  received  no  consideration  for 
the   said    note. 

2004.  That  the  acceptance  was  for  accommodation. 

I.  That  he  accepted  the  bill  mentioned  in  the  complaint 
for  the  accommodation  of  the  plaintiff  [or,  of  said  M .  . . . 
N. . . .];  and  that  there  was  never  any  value  or  considera- 
tion for  the  acceptance  or  payment  of  said  bill  by  the  de- 
fendant. 

[Where  plaintiff  is  an  indorsee,  add:  II.  That  the  same  was 
indorsed  to  the  plaintiff,  and  he  always  held  the  same, 
without  any  value  or  consideration.] 

2005.  That  the  note  was  for  accommodaton,  and  was 

misapplied. 

I.  That  the  note  mentioned  and  described  in  the  com- 
plaint was  given  by  this  defendant  to  [the  payee]  therein 
named,  without  any  other  consideration  than  is  hereinafter 
stated. 

II.  That  theretofore  this  defendant  had  loaned  his  pro- 
missory note  for dollars,  dated  on  the  ....  day  of 

,  19.  .,  to  said  [payee]  without  consideration,  and  sole- 


Chapter  XCIV.]         ,  1447  [Forms  2006,  2007. 

ly  for  the  accommodation  of  said  [payee]  and  upon  his  pro- 
mise to  take  up  and  pay  the  same  at  maturity. 

III.  That  said  note  fell  due  on  the  ....  day  of , 

19. .,  and  that  at  the  request  of  said  [payee],  this  defendant 
then  gave  him  the  note  in  suit,  for  the  special  purpose  of  en- 
abling him  therewith  to  take  up  and  renew  said  first  note  of 
dollars,  he  paying  the  balance,  and  upon  the  agree- 
ment with  him  that  it  should  be  so  used,  and  not  otherwise. 

IV.  That  the  plaintiff  having  a  claim  then  over-due 
against  the  said  [payee]  the  said  [payee]  wrongfully  diverted 
said  note  from  the  purpose  for  which  it  was  given,  and 
fraudulently  misapplied  the  same  by  giving  it  to  the  plaintiff 
as  collateral  to  secure  the  payment  of  said  claim. 

V.  That  the  plaintiff  is  not  the  bona  fide  holder  of  the 
note  in  suit  for  a  valuable  consideration;  but  received  the 
same  with  notice  of  the  foregoing  facts,  and  as  collateral  to 
secure  the  payment  of  an  antecedent  debt,  and  without 
paying  any  consideration  therefor. 

VI.  This  defendant  denies  each  and  every  allegation  of 
the  complaint,  not  hereinbefore  admitted. 

2006.  That  the  note  or  acceptance  was  given  for  goods 

sold,  but  never  delivered. 

I.  That  the  bill  [or  note]  mentioned  in  the  complaint  was 
accepted  [or  given]  by  the  defendant  for  the  price  of  goods  to 
be  sold  and  delivered  by  the  plaintiff  to  the  defendant  be- 
fore the  said  bill  [or  note]  should  become  due. 

II.  That  defendant  has  always  been  ready  and  wilHng 
to  buy  and  accept  said  goods  from  the  plaintiff,  and  has  duly 
performed  all  the  conditions  on  his  part. 

III.  That  the  plaintiff  has  not  sold  and  delivered  the 
same  to  the  defendant  [though  the  defendant,  on  the  .... 
day  of 19, .,  at duly  requested  him  so  to  do]. 

IV.  That  except  as  aforesaid  there  never  was  any  con- 
sideration for  the  acceptance  or  payment  of  said  bill  [or, 
giving  or  payment  of  said  note]  by  the  defendant. 

2007.  That  the  notes  were  given  for  purchase-money, 

and  plaintiff  failed  to  convey. 

I.  That  the  only  consideration  of  the  said  three  several 
notes  was  and  is  the  sale  of  a  certain  piece  of  land,  situate  in 


Forms  2008,  2009.]  1448  [Chapter  XCIV. 

the  county  of and  state  of ,  and  known  and 

described  as  [description]. 

II.  That  at  the  time  of  making  said  several  promissory 
notes,  the  said  plaintiff  agreed  to  convey  the  said  premises 
to  this  defendant,  at  the  time  when  the  sum  named  in  the 
note  described  in  the  first  count  of  the  said  complaint  should 
become  due  and  payable,  to-wit,  on  the  said   ....   day  of 

,  19. . ;  and  take  a  mortgage  from  this  defendant  on 

said  premises,  to  secure  the  payment  of  the  sums  mentioned 
in  the  two  notes  described  in  the  second  and  third  counts  of 
the  said  complaint. 

III.  That  the  defendant  duly  performed  all  the  con- 
ditions of  said  agreement  on  his  part,  and  on  said  day,  and 
ever  since  has  been  ready  and  willing  to  pay  the  first- 
named  sum,  and  execute  and  deliver  said  mortgage,  on  the 
delivery  by  the  said  plaintiff  of  such  deed  of  conveyance. 

IV.  That  said  plaintiff  did  not,  on  the  said  ....  day  of 

,  19 . ,,  nor  at  any  time  since,  offer  to  convey  the  said 

premises  to  the  said  defendant,  on  the  payment  of  the  sum 
mentioned  in  the  said  first  note,  and  the  execution  of  a 
mortgage  by  the  said  defendant  as  aforesaid,  to  secure  the 
sums  of  money  mentioned  in  the  two  other  notes  [or,  if 
by  the  agreement  it  was  necessary,  allege  demand  and  refusal]. 

2008.  That  the  note  was  for  goods  sold  by  means  of  de- 

ceit. 

I.  [Allege  sale  as  in  the  case  of  an  action  for  damages  for 
deceit.  Chap.  XLV,  ante,  omitting  at  the  end  the  allegation  of 
damage  and  demand  for  Judgment.] 

II.  That  said  note  was  given  to  the  plaintiff  without  any 
other  consideration  than  said  [sale]. 

ni.  That  immediately  on  discovering  said  fraud,  the 
defendant  rescinded  said  [contract],  and  delivered  [or  tend- 
ered] to  the  plaintiff  all  that  the  defendant  had  received  under 
said-  contract,  upon  condition  of  his  returning  said  note, 
which  the  plaintiff  refused  to  do. 

2009.  That  the  note  was  for  goods  sold  with  a  false  war- 

ranty. 

I.  That  the  defendant  gave  the  note  mentioned  in  the 
complaint  for  and  on  account  of  certain  goods,  called , 


Chapter  XCIV.]  1449  [Forms  2010,  2011. 

theretofore  furnished  by  the  plaintiff  to  him,  the  defendant, 
under  a  representation  and  warranty  by  the  plaintiff,  at  the 
time  of  so  furnishing  them,  made  to  the  defendant,  that  the 

said  goods  were  fit  and  proper  material  for [stating 

the  warranty]  and  suitable  for  such  purpose;  and  for  no  other 
consideration  whatever. 

II.  That  the  defendant  then  accepted  and  purchased  said 
goods  for  the  purpose  of trusting  in  the  said  repre- 
sentation and  warranty  of  the  plaintiff;  all  of  which  the 
plaintiff  then  well  knew. 

III.  That  the  same  were  not  fit  or  proper  for  said  pur- 
pose, but  altogether  unsuitable  and  worthless,  in  this,  that 
[here  state  particularly  the  defects]. 

2010.  Counter-claim  for  breach  of  warranty  (adapted 

from  Allen  v.  Haskins,  5  Duer,  332). 

I.  The  defendant,  for  a  counter-claim  herein,  alleges  that 
the  said  note  was  not,  before  it  became  due,  transferred  and 
delivered  to  the  plaintiff  for  value. 

II.  That  the  said  note  was  made  and  delivered  by  the 
defendant  to  one  M. . . .  N. . . .,  who  was  at  that  time  an 
agent  or  servant  of  the  plaintiff,  and  acting  as  such  on  be- 
half of  the  plaintiff  in  that  transaction,  in  exchange  for  a 
quantity  of  cigars;  which  was  sold  by  sample  to  the  defend- 
ant at  that  time,  by  said  M. . . .  N. . . .,  as  such  agent. 

III.  That  when  said  cigars  were  delivered  to  this  de- 
fendant, they  did  not  correspond  with  the  samples,  and 
were  not  worth  more  than   dollars. 

IV.  That  as  soon  as  the  defendant  learned  the  character 
of  said  cigars,  he  offered  to  said  M . . . .  N . .  . . ,  as  such  agent, 
to  return  them,  which  he  is  still  ready  and  willing  to  do. 

WHEREFORE  the  defendant  demands  judgment  for  his 

damages  herein,  to-wit,  the  sum  of dollars,  and  that 

the  same  be  deducted  from  the  amount  of  the  said  note. 

2011.  That  the  note  was  given  on  a  purchase  of  diseased 

sheep  and  that  they  injured  other  sheep  of  the 
defendant  (Rose  v.  Wallace,  11  Ind.  112). 

I.  The  defendant,  for  a  counter-claim,  alleges  that  the 
said  note  was  given  for  sheep  purchased  by  the  defendant 
of  the  plaintiff. 


Forms  2012,  2013.]  1450  [Chapter  XCIV. 

II.  That  the  plaintiff,  in  making  said  sale,  represented 
himself  to  the  defendant  as  a  dealer  in  sheep,  and  acquainted 
with  their  diseases,  and  that  the  said  sheep  were  sound  and 
free  from  disease. 

III.  That  defendant  was  ignorant  of  the  disease  called 
foot-rot;  and  that  he  purchased  said  sheep,  relying  upon  the 
said  representations  of  the  said  plaintiff. 

IV.  That  in  fact  the  sheep  were  not  sound  and  free  from 
disease,  but  were  diseased  with  the  foot-rot,  which  is  con- 
tagious. 

V.  That  the  defendant  wrs  then  the  owner  of  five  thou- 
sand other  sheep,  with  which  he  desired  those  he  purchased 
of  plaintiff  to  run;  of  all  of  which  the  plaintiff  had  notice  at 
the  time  of  making  the  said  sale. 

VI.  That  before  he  had  any  knowledge  that  the  sheep  so 
purchased  were  diseased,  and  while  they  were  running  with 
his  other  sheep,  the  latter  became  diseased  with  said  foot- 
rot  from  so  running  together;  and  that  he  has  been  thereby 
compelled  to  expend  dollars  in  their  cure  and  en- 
deavoring to  cure  them,  and  been  damaged  by  reason  of 
allowing  said  sheep  to  run  with  his  other  sheep,  to  the  amount 
of dollars. 

"WHEREFORE,  etc.  [demand  of  Judgment  for  damages 
sustained]. 

2012.  That  the  note  was  induced  by  plaintiff's  fraud, 

general  form. 

I.  That  the  plaintiff  induced  him  to  make  the  note  men- 
tioned in  the  complaint,  by  representing  that  [here  state 
specifically    the  false    representation   of  facts]. 

II.  That  the  said  representation  was  false,  and  known  to 
be  false  by  the  plaintiff,  and  made  with  intent  to  deceive  and 
defraud   this   defendant. 

III.  That  the  defendant  believed  said  representation  to 
be  true,  and  relied  thereon,  and  so  relying  did  make  and 
deliver  to  the  plaintiff  the  said  note  mentioned  in  the  com- 
plaint. 

[Allege  return  of  property  received,  if  any,  and  rescission.] 

2013.  Denial  of  transfer  to  the  plaintiff. 

That  the  said  note  was  made  and  indorsed  by  the  defend- 


Chapter  XCIV.]  1451  [Forms  2014-2016. 

ants,  and  by  them  delivered  to  one  M N a  person 

other  than  the  plaintiff,  with  whom  defendants  had  busi- 
ness transactions;  and  defendants  deny  that  they  have  any 
knowledge  or  information  sufTicient  to  form  a  belief  whether 
or  not  said  note  was  thereafter  duly  transferred  and  deliv- 
ered by  the  lawful,  or  other,  holders  thereof  to  the  plaintiff; 
and  the  defendants  further  deny  that  they  have  any  knowl- 
edge or  information  sufTicient  to  form  a  belief  whether  or  not 
the  plaintifT  is  the  lawful  owner  and  holder  of  said  note. 

2014.  Qualified  admission  of  note,  and  denial  of  plain- 

tiff's title  (Smith  v.  Mead,  14  Abbott's  Pr.  262). 

I.  Defendants  admit  that  heretofore  they  executed  and 
delivered  a  promissory  note  to  the  plaintiff;  but  deny  that  the 
description  of  said  note  in  the  complaint  is  a  true  description 
of  said  note,  or  correctly  states  the  terms  thereof. 

II.  Defendants,  further  answering,  deny  [knowledge  or 
information  sufTicient  to  form  a  belief]  that  the  plaintiff  is 
now,  or  was  at  the  commencement  of  this  action,  the  lawful 
and  bona  fide  owner  and  holder  of  said  promissory  note,  or 
has  any  interest  whatever  therein;  and  the  defendants  allege, 
on  information  and  belief,  that  before  this  action  said  plaintifT 
sold  and  delivered  said  note  for  a  valuable  consideration  to 
one  John  Doe,  who  is,  and  at  the  commencement  of  this 
action  was,  the  lawful  owner  and  holder  of  said  note. 

2015.  Wrongful  transfer  by  partner  (Kerneys  v.  Rich- 

ards, 11  Barb.  312). 

That  the  note  alleged  was  not  indorsed  by  M . . . .  N . . . . 
&  Co.,  but  that  it  was  indorsed  in  the  name  of  said  firm  by 
B. . . .,  and  by  him  transferred  to  the  plaintiffs  in  payment 

of  an  individual  debt  of  said  B ,   and  without  the 

knowledge  or  consent  of  said  A his  partner,  and  that 

the  plaintiffs  at  the  time  of  the  said  transfer  had  full  knowl- 
edge thereof. 

2016.  Denial  of  validity  of  transfer  of  note  by  moneyed 

corporation  (Smith  v.  Hall,  5  Bosw.  319). 

I.  That  said  corporation  did  not  indorse  said  note  to  the 
plaintiffs,  but  the  alleged  transfer  thereof  was  the  act  of 


Forms  2017,  2018.]  1452  [Chapter  XCIV. 

some  officer,  or  officers,  of  said  corporation,  unauthorized  in 
any  manner  by  the  board  of  trustees. 

II.  That  said  transfer  was  made  when  the  said  corpora- 
tion was  insolvent,  to  the  knowledge  of  the  plaintiffs,  for  a 
prior  indebtedness  of  the  corporation,  with  intent  to  give  a 
preference  to  the  plaintiffs  over  other  creditors  of  the  cor- 
poration, and  that  the  plaintiff  was  at  the  time  one  of  the 
trustees  of  the  said  company. 

2017.  By  accommodation  indorsers,  alleging  extension 

given  to  makers. 

I.  That  said  note  was  indorsed  by  the  defendants  without 
consideration,  and  for  the  accommodation  of  the  defendant 
Z ,  the  maker  thereof. 

II.  That  the  plaintiffs,  at  the  time  they  received  said 
note,  had  notice  thereof. 

III.  That  about  the  time  of  its  maturity,  the  plaintiffs, 
for  a  valuable  consideration,  and  without  the  knowledge  or 
assent  of  these  defendants,  made  an  agreement  with  said 
[maker]  whereby  they  agreed  to  extend  the  time  for  the  pay- 
ment of  said  note  by  said  [maker]  ....  days. 

2018.  That  defendant  was  a  surety,  and  that  plaintiff 

holds  collateral  securities  to  which  defendant 
asks  to  be  subrogated  (Bank  v.  Hunter,  4  Bosw. 
646). 

I.  The  defendant,  for  a  counter-claim,  alleges  that  said 
draft  was  accepted  by  the  defendant  without  any  consid- 
eration, for  the  accommodation  of  said  [drawers],  which  the 
plaintiff  well  knew. 

II.  That  the  same  was  made  under  an  agreement  be- 
tween said  [drawers]  and  the  plaintiff,  whereby  said  [drawers] 

executed  to  the  plaintiff  a  bond  for dollars,  together 

with  a  mortgage  on  house  and  lot  No , street,  in 

,  as  security  for  the  payment  thereof,  which  securities 

the  plaintiff  still  holds,  and  are  ample  to  secure  and  satisfy 
the  plaintiff's  demand. 

III.  That  said  [drawers]  are  insolvent  and  unable  to  pay 
said  acceptance,  and  the  defendant  has  no  recourse  for  the 
payment  or  security  of  the  sum  for  which  he  is  liable  to  the 


Chapter  XCIV.]  1453  [Forms  2019-2022. 

plaintiff,  except  the  said  mortgages  and  securities  held  by 
the  plaintiff. 

IV.  That  the  defendant  has  offered  "to  pay  the  said 
draft,  with  interest  and  costs,  if  the  plaintiff  will  surrender 
and  transfer  to  the  defendant  upon  such  payment,  the 
mortgages  and  securities  held  by  the  plaintiff;  which  the 
plaintiff  refuses  to  do,  but  claims  to  hold  said  securities  for 
some  other  demand  due  to  the  plaintiff  from  said  [drawers]. 

V,  That  the  plaintiff  is  a  foreign  corporation,  created 

and  doing  business  in  the  state  of ,  and  the  defendant 

will  be  remediless  under  the  laws  of  the  slate  of   , 

where  the  defendant  resides,  except  by  the  aid  and  interpo- 
sition of  this  court. 

"WHEREFORE  the  defendant  demands  that  upon  his 
paying  said  draft,  with  interest  and  costs,  the  plaintiff  be 
adjudged  to  transfer  said  bond  and  mortgage  to  the  de- 
fendant [and  that  he  may  hold  and  enforce  them  for  his  re- 
imbursement, with  interest], 

2019.  Denial  of  acceptance,  presentment,  and  protest. 

The  defendant  denies  that  the  bill  of  exchange  mentioned 
in  plaintiff's  first  cause  of  action  was  presented  for  acceptance, 
or  was  accepted  as  alleged,  or  was  presented  for  payment,  or 
was  protested  for  non-payment,  or  that  payment  was  re- 
fused, as  alleged  in  said  complaint. 

2020.  Denial  of  notice. 

The  defendant  denies  that  notice  of  the  dishonor  of  the 
said  promissory  note  [or  bill]  was  given  to  the  defendant,  as 
alleged  in  the  complaint  herein. 

2021.  Denial  of  presentment. 

The  defendant  denies  that  the  promissory  note  [or  bill  of 
exchange]  mentioned  therein,  was  ever  presented  for  pay- 
ment [or  for  acceptance]  to  him  [or  to  IVI. . . .  N. . . .]  as  al- 
leged in  said  complaint. 

2022.  Denial  of  excuse  for  non-presentment. 

The  defendant  denies  that  due  search  was  made  when  the 
said  bill  of  exchange  [or  promissory  note]  became  due  and 
payable,  to  discover  the  residence  and  person  of  the  said 


Forms  2023,  2024.]  1454  [Chapter  XCIV. 

E . . . .  F ,  at or  elsewhere,  in  order  that  the  said 

bill  might  be  presented  to  the  said  E . . . .  F for  payment, 

as  alleged  in  said  complaint. 

2023.  Breach  of  special  agreement  as  to  presenting  and 

giving  notice. 

I.  That  the  bill  of  exchange  [or  check]  in  the  said  com- 
plaint mentioned,  was  by  the  said  defendant  delivered  to  the 
said  plaintif£»  and  by  him  discounted  for  the  said  defendants, 
upon  the  express  condition  and  understanding  that  the 
plaintiffs  should  cause  the  same  to  be  presented  to  the  re- 
spective drawees  thereof  for  acceptance  or  payment,  and 
acceptance  or  payment  thereof  to  be  demanded  as  soon 
after  the  delivery  thereof  as  the  same  could  be  done  by  the 
exercise  of  reasonable  diligence  in  that  behalf;  and  that  in 
case  of  the  non-acceptance  or  nonpayment  thereof  by  the 
respective  drawees,  on  presentation  or  demand,  immediate 
notice  of  such  non-acceptance  or  non-payment  should  be 
given  to  the  defendants  by  telegraph,  or  that  the  said 
defendants  should  not  be  bound  or  liable  to  pay  the  said 
bill  of  exchange. 

II.  That  the  said  plaintiff  failed  to  comply  with  the  con- 
dition or  understanding  aforesaid,  and  did  not  present  the. 
said  bill  of  exchange  for  acceptance  or  payment  or  demand 
acceptance  or  payment  of  the  same  within  a  reasonable  time 
after  the  delivery  thereof  to  the  said  plaintiff;  nor  was  im- 
mediate notice  of  the  non-acceptance  or  non-payment  there- 
of given  to  the  defendants,  by  telegraph  or  otherwise. 

2024.  Payment  of  bill,  to  drawer,  before  indorsement. 

I.  That  after  the  bill  mentioned  in  the  complaint  was 
due,  and  while  said  [drawer]  was  the  holder  thereof,  and 
before  this  action,  the  defendant  satisfied  and  discharged 
the  principal  and  interest  [and  damages]  due  on  said  bill, 
by  payment  to  the  said  [drawer]. 

II.  That  said  [drawer]  first  indorsed  said  bill  to  the  plain- 
tiff after  said  payment. 


Chapter  XCIV.]  1455  [Form  2025. 

2025.  Fraudulent  representations  as  to  the  character  of 
the  instrument  (adapted  from  Walker  v.  Ebert, 
29  Wis.  194). 

I.  That  this  defendant  is  a  German,  unable  to  read  or 
write  the  English  language,  and  that  on  the  day  of  the  date 
of  supposed  note  in  the  complaint  described,  and  just  before 
the  supposed  making  thereof  the  said  E.  . .  ,  F.  .  .  .  and  G. . . 
FI.  . . .,  the  payees  named  therein  falsely  and  fraudulently 
represented  to  defendant  with  intent  to  swindle,  cheat  and 
defraud  the  defendant,  that  they  would  appoint  him  an 

agent  for  the  town  of   for  the  exclusive  sale  of  a 

certain  patent  and  invention  known  as  the  Sulky  Wheel 
Cultivator  [here  set  forth  the  representations  and  agreements 
orally  made];  that  thereupon  the  said  E....  F...,  and 
G. , . .  H. . . .  presented  to  this  defendant  to  sign  in  dupli- 
cate, an  instrument  partly  written  and  partly  printed, 
which  this  defendant  was  unable  to  read,  and  which  the 
said  E.  . .  .  F. . . .  and  G. . . .  H. . . .  falsely  and  fraudulently 
then  and  there  represented  to  be  simply  a  contract  of  agency 
embracing  the  terms  and  conditions  orally  agreed  on  as 
aforesaid, 

II.  That  thereupon  this  defendant,  relying  upon  the 
truth  of  said  representations,  and  believing  that  said  in- 
strument was  simply  an  agency  contract  in  duplicate,  and 
being  unable  to  read  the  same,  and  without  negligence  on 
his  part,  attached  his  signature  to  the  said  instrument  in 
duplicate,  and  that  the  said  E. . . .  F.  .  .  .  and  G. . . .  H. . . . 
immediately  took  the  same,  and  this  defendant  has  not  since 
that  time  seen  the  said  instrument. 

III.  Upon  information  and  behef  the  defendant  alleges 
that  in  truth  and  in  fact  the  said  instrument  so  signed  by 
defendant  was  in  form  a  promissory  note,  and  not  an  agency 
contract,  and  that  the  same  is  the  identical  note  upon  which 
this  action  is  brought. 

IV.  That  this  defendant  never  intended  to  sign  or  de- 
liver the  said  note,  and  never  received  any  consideration  of 
any  kind  therefor,  but  that  the  same,  if  signed  by  this  de- 
fendant at  all,  was  signed  under  the  circumstances  herein- 
before set  forth,  and  not  otherwise. 

V.  [//  plaintiff  is  an  indorsee.]  That  the  plaintiff  gave 
no  valuable  consideration  for  said  note,  but  that  the  same 


Form  2026.]  1456  [Chapter  XCIV. 

was  assigned  to  him  after  maturity  thereof,  and  with  knowl- 
edge of  the  facts  hereinbefore  stated. 

2026.    That  note  was  given  to  compound  a  felony. 

I.     The  defendant  alleges  that  on  or  about  the  ....  day  of 

,  19. .,  this  defendant  [or  one  E. . . .  F. . . .,  the  son  of 

this  defendant]  feloniously  [here  state  crime  committed],  and 
that  thereafter  it  was  agreed  by  and  between  this  defendant 
and  the  said  plaintiff  that  the  defendant  should  execute  and 
deliver  to  the  said  plaintiff  his  promissory  note  for  the  sum 

of dollars  in  settlement  and  satisfaction  of  the  said 

crime,  and  for  the  purpose  of  compounding  the  same,  and 
that  in  pursuance  of  said  agreement  the  said  note  described 
in  the  complaint  was  executed  and  delivered  to  the  plaintiff, 
and  upon  no  other  or  different  consideration. 


CHAPTER  XCV. 


DEFENSES  IN  ACTIONS  ON  AWARDS. 


2027.  Denial  of  parol  submission. 

2028.  Denial  of  award. 

2029.  Performance  by  defendant. 


2030.  Denial    of   performance    by 

plaintiff. 

2031.  Invalidity  of  award. 


2027.  Denial  of  parol  submission. 

I.  The  defendant  denies  that  he  ever  agreed  with  the 
plaintiff  that  any  matters  of  dispute  or  difference  between 
himself  and  the  plaintiff  should  be  submitted  to  arbitration, 
as  alleged  in  said  complaint. 

2028.  Denial  of  award. 

I.  The  defendant  denies  that  the  said  [arbitrators  or 
umpire]  at  any  time  made  or  published  any  award  as  in  said 
complaint  alleged. 

2029.  Performance  by  defendant 

I.  The  defendant  denies  that  he  has  failed  or  neglected  to 
perform  said  award,  and  on  the  contrary  thereof  alleges  that 

on  the  ....  day  of ,  19 . .  [here  state  what  defendant  has 

done  by  way  of  performance  of  the  award]. 

2030.  Denial  of  performance  by  plaintiff. 

I.  The  defendant  denies  that  the  plaintiff  has  performed 
said  award,  and  alleges  that  the  plaintiff  did  not  [here  state 
breaches  of  award  by  the  plaintiff], 

2031.  Invalidity  of  award   (Knowlton  v.  Mickles,  29 

Barb.  465). 

I.  The  defendant  admits  the  submission  of  the  said  con- 
troversy to  arbitration,  and  that  the  time  for  the  delivery  of 
the  award  was  extended,  as  stated  in  the  complaint. 

II.  The  defendant  denies  [any  knowledge  or  information 
sufficient  to  form  a  belief]  that  the  arbitrators  made  an  award 

92 


Form  2031.]  1458  [Chapter  XCV. 

[in  writing,  under  their  hands,  and  delivered  the  same  to  the 
plaintiff]  within  the  time  so  limited  therefor. 

III.  The  defendant  further  says,  that  he  never  had  any 
notice  of  the  time  or  place  when  or  where  the  said  arbitrators 
would  meet  to  hear  the  matters  submitted  to  them,  or  any 
opportunity  of  appearing  before  said  arbitrators,  nor  of  pro- 
ducing proof,  nor  examining  witnesses,  nor  of  being  heard  in 
his  defense  before  said  arbitrators;  and  the  alleged  award 
was  made  without  any  information  or  notice  thereof  to  the 
defendant,  until  long  after  the  day  when  the  same  is  alleged 
to  have  been  made. 

IV.  That  the  said  arbitrators,  on  the  ....  day  of 

19.  .,  and  while  examining  the  premises  and  preparing  their 
award,  or  immediately  prior  thereto,  and  on  the  same  day, 
examined  several  witnesses  touching  the  matters  submitted 
to  them  by  the  parties,  and  took  and  heard  their  statements 
in  respect  thereto,  in  the  presence  of  the  plaintiff,  and  in  the 
absence  of,  and  unbeknown  to,  and  without  the  consent  of, 
the  defendant. 

V.  That  defendant  had  a  good  and  substantial  defense 
upon  the  merits,  in  the  matter  submitted  to  said  arbitrators; 
and  that  he  would  have  been  entitled  to  an  award  in  his 
favor,  had  an  opportunity  been  afforded  him  of  producing 
his  proofs  before  the  said  arbitrators. 


CHAPTER  XCVI. 


DEFENSES  IN  ACTIONS  ON  BONDS. 


2032.  That  the  bond  sued  on  was 

on  a  condition,   and  that 
defendant  has  paid  it. 

2033.  Failure  of  consideration. 


2034.  Failure  of  consideration  in 
action  on  bond  for  pur- 
chase money. 


2032.  That  the  bond  sued  on  was  on  was  on  a  condition, 

and  that  defendant  has  paid  it. 

I.  That  the  bond  mentioned  in  the  complaint  was,  and  is 
subject  to  a  condition  thereunder  written  to  make  void  the 
same,  upon  payment  by  the  defendant  to  the  plaintiff,  on  the 

. .  .  .day  of   ,  19. .,  of  the  sum  of dollars, 

with  interest  at  the  rate  of  ....  per  cent,  [or  other  condition]. 

II.  That  the  defendant  on  that  day  [or  after  that  day,  and 
before  the  commencement  of  this  action]  paid  to  the  plaintiff 
the  said  sum  of dollars,  with  all  interest  due  there- 
on, and  thereby  fully  performed  and  discharged  the  said 
condition. 

2033.  Failure  of  consideration. 

I.  That  he  gave  said  bond  [with  a  mortgage  collateral 
thereto]  to  said  [obligee]  solely  in  consideration  of  the  per- 
formance by  said  [obligee]  of  the  covenants  and  conditions 
upon  his  part,  in  an  agreement  then  made  between  them,  of 
which  agreement  a  copy  is  annexed  as  a  part  of  this  answer. 

II.  That  this  defendant  duly  performed  all  the  conditions 
thereof  on  his  part. 

III.  That  the  said  [obligee, — here  allege  breach,  as  in  an 
action  upon  the  contract], 

2034.  Failure  of  consideration  in  action  on  bond  for  pur- 

chase money. 

I,  II,  III  and  IV.  [Allege  conveyance  by  the  plaintiff  to  the 
defendant,  with  covenant,  and  breach  thereof,  in  a  similar  man- 
ner as  in  a  complaint  in  an  action  for  breach  of  covenant,  ante 
Chapter  XXXIX.] 


Form  2034.]  1460  [Chapter  XCVI. 

V.  That  at  the  same  time  when  the  said  conveyance  was 
executed  by  the  plaintiff  [and  his  said  wife]  to-wit,  on  the 
said  ....  day  of ,  19. .,  at the  defendant,  sim- 
ultaneously with  the  execution  of  the  said  conveyance, 
executed  and  delivered  to  the  plaintiff  the  bond  mentioned 
in  the  complaint,  as  a  security  for  the  payment  of  the  pur- 
chase money  in  the  said  conveyance  mentioned,  and  for  no 
other  purpose  or  intent  whatever;  and  the  same,  respectively, 
were  so  then  and  there  accepted  and  received  by  the  said 
plaintiff  from  the  said  defendant  as  such  security  as  afore- 
said. 


CHAPTER  XCVII. 

DEFENCES  IN  ACTIONS  ON  GUARANTIES. 


2035.  Denial    of    performance    by 

plaintiff. 

2036.  Departure  from  guaranty. 


2037.  Denial  of  notice  of  accept- 

ance. 

2038.  Alteration    of    contract    re- 

leasing guarantor. 


2035.  Denial  of  performance  by  plaintiff. 

I.  The  defendant  denies  that  the  plaintiff  at  any  time  sold 
or  delivered  the  goods  [or  rendered  the  services]  to  the  said 
E . . . .  F . . . . ,  as  alleged  in  said  complaint. 

2036.  Departure  from  guaranty. 

I.  The  defendant  denies  that  he  at  any  time  agreed  or 
promised  to  be  answerable  generally  to  the  plaintiff  for  tlie 

price  of  all  goods  sold  by  him  to  the  said  E .  .  . .   F 

and  on  the  contrary  alleges  that  he  agreed  to  be  answerable 

only  for  goods  to  an  amount  not  exceeding dollars 

[or,  to  be  sold  on  a  credit  not  exceeding  ....  months],  which 
limit  the  plaintiff  exceeded  in  his  alleged  sale. 

2037.  Denial  of  notice  of  acceptance. 

I.  The  defendant  denies  that  any  notice  was  at  any  time 
given  to  the  defendant  by  the  plaintiff  or  by  any  person  in 
his  behalf  that  the  plaintiff  accepted  the  said  guaranty  set 

forth  in  the  complaint  and  would  give  to  said  E. .  .  .  F 

the  credit  therein  mentioned  or  that  plaintiff  had  furnished 
said  goods  [or,  rendered  said  services]  in  reliance  upon  said 
guaranty. 

2038.  Alteration  of  contract  releasing  guarantor. 

I.  That  on  the day  of 19 . .  the  plain- 
tiff without  the  knowledge  or  consent  of  the  said  defendant 
agreed  with  the  said  [name  the  principal]  in  consideration  of 

the  sum  of dollars,  to  [here  state  the  change  made  in 

the  contract  as  for  instance]  to  extend  the  time  of  payment  of 

the  rent  guaranteed  by  the  defendant  for  the  period  of 

days  from 19 


CHAPTER  XCVIII. 

DEFENSES   IN  ACTIONS  ON   INSURANCE 
POLICIES. 


2039.  Denial  of  policy. 

2040.  Denial  of  plaintiff's  interest. 

2041.  Denial  of  loss  from  risk  in- 

sured against. 

2042.  That  the  policy  was  obtained 

by  misrepresentations. 

2043.  The  same,  in  life  insurance. 

2044.  Denial  of  making  of  proof  of 

loss. 

2045.  Denial  of  certificate  of  no- 

tary. 

2046.  That  plaintiff  gave  a  fraudu- 

lent account  of  loss. 

2047.  Transfer,    without    insurer's 

consent. 

2048.  Existence  of  liens. 

2049.  Extra-hazardous  risk. 

2050.  Another   form.       Correcting 

plaintiff's  statement  of  the 
policy,  and  alleging  extra- 
hazardous use  of  the  prem- 
ises. 

2051.  Unseaworthiness  of  vessel. 


2052.  Sale  of  damaged  goods  by 

plaintiff,  and  that  de- 
fendants paid  deficiency. 

2053.  Other     insurance,      without 

consent. 

2054.  Action  not  commenced  with- 

in time  limited  by  policy. 

2055.  Cancellation  of  policy  before 

loss. 

2056.  That  death  occurred  while  in- 

sured was  violating  law.    . 

2057.  That  insured  violated  policy 

by  traveling  beyond  terri- 
tory limited. 

2058.  That  material  statements  in 

application  were  false. 

2059.  Answer  that  building  was  un- 

occupied. 

2060.  Voluntary      assignment      or 

mortgage  by  assured. 

2061.  Outline    of    answer   by    fra- 

ternal benefit  order,  alleg- 
ing failure  to  conform  to 
constitution  or  by-laws. 


2039.  Denial  of  policy. 

The  defendant  denies  that  on  the   ....   day  of   , 

19.  .,  or  at  any  other  time  it  executed  or  delivered  the  policy 
of  insurance  described  in  the  plaintiff's  complaint. 

2040.  Denial  of  plaintiff's  interest. 

I.  The  defendant  denies  that  the  plaintiff  owned  or  had 
any  insurable  interest  in  the  said  goods  [or  the  said  build- 
ing, or  its  contents]  at  the  time  of  the  happening  of  the  said 
loss  in  the  complaint  described. 

2041.  Denial  of  loss  from  risk  insured  against. 

I.     The  defendant  denies  that  the  said  building  was  de- 


Chapter  XCVIII.]  1463  [Forms  2042-2044. 

stroyed  [or  injured]  during  the  term  of  said  insurance  by 
[here  state  risks  or  perils  insured  against],  but  on  the  contrary, 
the  defendant  alleges  that  said  loss  occurred  wholly  by  [here 
state  the  excepted  peril  which  caused  the  loss], 

2042.  That  the  policy  wa^  obtained  by  misrepresenta- 

tions/ 

That  the  defendants  were  induced  to  make  and  deliver  the 
policy,  and  become  insurers,  as  alleged  in  the  said  complaint, 
by  the  misrepresentation  made  by  the  plaintiff  to  the  defend- 
ants of  a  fact  then  material  to  be  known  to  the  defendants, 
and  material  to  the  risk  of  the  said  policy;  that  is  to  say;  by 
the  misrepresentation  that  the  said  vessel  was  loaded  with 
hides,  whereas  a  large  portion  of  her  cargo  consisted  of 

guano  [or,  that  the  said  vessel  had  sailed  from on  the 

....   day  of   ,  19. .,  where  she  had  not  sailed  from 

on  that  day,  but  on  the day  of ,  19 . .], 

as  the  plaintiff  well  knew. 

2043.  The  same,  in  life  insurance  (see  note  to  preceding 

form). 

That  a  material  fact  stated  in  the  application  mentioned 
in  the  policy  which  is  alleged  in  the  said  complaint,  and 
which  was  thereby  agreed  to  be  the  basis  of  the  said  insur- 
ance, was  untrue;  that  is  to  say  [or,  where  the  representation 
was  not  incorporated  in  the  contract:  That  the  said  M .  .  ,  . 
N .  .  .  .  induced  the  defendants  to  subscribe  the  policy  and 
become  insurers  as  alleged,  by  falsely  and  fraudulently  rep- 
resenting to  them],  that  at  the  time  of  the  delivery  of  said 

declaration  to  the  defendants  said  M N was  in  a 

good  state  of  health,  and  was  not  afflicted  with  any  disease 
or  disorder  tending  to  shorten  life;  whereas,  he  was  not  then 

in  good  health,  but  was  afflicted  with a  disease  which 

does  tend  to  shorten  life. 

2044.  Denial  of  making  of  proof  of  loss. 

The  defendant  denies  that  the  said  plaintiff  did,  within 
....  days,  which  was  the  time  limited  in  the  conditions  an- 

1  The  defense  of  fraudulent  repre-  be  set  forth,  and  the  proof  will  be 

rcntations  or  warranties  must   be  limited   to   thn   misrepresentations 

aflirmatively    pleaded;     the    exact  alleged, 
misrepresentations  relied   on   must 


Forms  2045-2047.]  1464  [Chapter  XCVIII. 

nexed  to  the  said  poUcy,  nor  within  a  resonable  time  after 
the  said  loss,  make  out  or  deUver  a  particular  account  of  such 
loss  and  damage,  signed  by  or  on  behalf  of  the  plaintiff,  and 
verified  by  his  oath  or  affirmation ;  but  neglected  to  do  so  for 
the  space  of months  after  said  loss. 

2045.  Denial  of  certificate  of  notary. 

That  the  plaintiff  did  not,  within  ....  days,  which  was  the 
time  limited  in  the  conditions  annexed  to  the  policy,  nor 
within  a  reasonable  time  after  said  loss  procure  [nor  has  he  at 
any  time  since  procured,  nor  delivered  to  the  defendantsl, 
the  certificate,  under  the  hand  of  a  magistrate  or  notary 
public,  which  is  by  the  conditions  annexed  to  the  said  policy, 
required  of  the  said  plaintiff. 

2046.  That  plaintiff  gave  a  fraudulent  account  of  loss. 

That  after  the  alleged  loss  and  damage,  and  before  action, 
the  plaintiff  made  and  delivered  to  the  defendants  a  false  and 
fraudulent  account  of  the  alleged  loss  and  damage,  as  and  for 
such  account  as  is  mentioned  in  the  conditions  contained  in 
[or  annexed  to]  said  policy,  in  which  said  account  he  repre- 
sented and  stated  that  insured  goods  and  property  of  the 

plaintiff  to  the  amount  of dollars  had  been  burnt 

and  destroyed  by  the  said  fire,  and  that  his  loss  and  damage 

by  the  said  fire  were  to  the  said  amount  of dollars, 

with  intent  to  induce  the  defendants  to  pay  to  him  said 
amount;  whereas  insured  goods  and  property  of  the  plaintiff 
had  not  been  burnt  or  destroyed  by  said  fire  to  that  amount, 
and  his  said  loss  and  damage  do  not  exceed dol- 
lars, as  the  plaintiff  then  well  knew. 

2047.  Transfer,  without  insurer's  consent. 

I.  That  it  is,  among  other  things,  provided  by  said  in- 
surance policy,  that  in  case  of  any  transfer  or  termination  of 
the  interest  of  the  insured,  either  by  sale  or  otherwise  of  the 
property  insured,  without  the  consent  of  the  company,  the 
policy  should  from  thenceforth  be  void. 

II.  That  after  the  making  of  said  policy,  and  before  the 
loss  alleged,  the  interest  of  the  said  [insured]  in  said  [things 
insured]  was  terminated  and  transferred,  and  the  title  there- 
to vested  in  said  plaintiff  without  the  consent  of  the  defend- 


Chapter  XCVIII.]  1465  [Forms  2048-2050. 

ants,  whereby  the  policy  became,  and  was,  void  at  the  time 
of  said  loss. 

2048.  Existence  of  liens. 

I.  [Allege  provisions  of  policy,  similarly  as  in  preceding 
form.] 

II.  That  at  the  time  of  making  said  policy,  the  said  in- 
terest of  [the  insured]  was  not  free  from  all  liens  and  claims 
that  might  be  prosecuted  against  the  said  [thing  insured]; 
but  on  the  contrary,  the  same  was  subject  to  a  chattel  mort- 
gage, which  was  unknown  to  the  defendants  at  the  time  of 
issuing  said  policy,  which  mortgage  was  dated  on  the  .... 

day  of ,  19 . . ,  and  given  by  said  plaintiff  to  one  M . , . . 

N . . . .  to  secure dollars. 

2049.  Extra-hazardous  risk.' 

I.  [Allege  provisions  of  policy,  similarly  as  in  preceding 
form.] 

II.  That  after  the  making  of  the  said  policy,  and  before 
the  loss  alleged,  the  plaintiff  received  into  his  said  store  a 
large  quantity  of  goods  known  and  described  as  extra- 
hazardous, to-wit well  knowing  that  such  reception 

was  a  violation  of  the  conditions  in  the  said  policy  contained; 
and  at  the  time  of  the  said  fire,  the  said  plaintiff  had  in  said 
store  a  large  quantity  of  such  extra-hazardous  goods. 

2050.  Another  form.    Correcting  plaintiff's  statement 

of  the  policy,  and  alleging  extra-hazardous  use 
of  the  premises. 

I.  The  defendants  admit  that  they  are  a  corporation  duly 
created  by  and  under  the  laws  of  this  state,  and  that  they  did, 
on  or  about  the day  of ,  19 . . ,  at ,  in  con- 
sideration of dollars,  to  them  paid,  execute  and  de- 
liver to  M . .  . .  N.  .  .  .,  in  the  complaint  named,  a  policy  of 
insurance,  whereby  they  insured  the  said  M .  .  .  .  N . .  .  .  to 

the  amount  of dollars  against  loss  or  damage  by  fire 

upon  [his  stock  of  books  and  stationery  contained  in  the  five- 
story  brick  building.  No ,  in   street]  subject, 

•This  is  an  affirmative  defense,  and  must  be  specially  pleaded  by 
defendant. 


Form  2050.]  1466  [Chapter  XCVIII. 

nevertheless,  and  upon  the  terms,  conditions,  limitations,  and 
restrictions  in  the  said  policy,  and  hereafter  particularly  re- 
ferred to,  and  not  otherwise;  but  the  defendants  deny  that 
they  insured  the  said  M ....  N . . . .  in  the  way  and  man- 
ner, and  to  the  extent  and  with  the  privileges,  in  the  com- 
plaint alleged;  and  they  also  deny  that  the  paper  annexed 
to  the  complaint,  and  purporting  to  be  a  copy  of  the  said 
policy,  is  a  correct  copy  of  the  policy  so^ issued  by  the  de- 
fendants and  delivered  to  the  said  M . . . .  N .  .  . ,  as  above 
admitted,  and  which  was  the  only  policy  ever  issued  to  him 
by  these  defendants. 

II.  And  these  defendants  further  allege  that  it  was  in  and 
by  the  policy  so  executed  and  delivered  as  aforesaid  amongst 
other  things,  agreed  and  declared  on  the  part  of  both  parties 
that  [setting  forth  provisions  relied  on]. 

III.  And  further,  "and  that  this  policy  is  made  and  ac- 
cepted in  reference  to  the  proposals  or  conditions  hereto  an- 
nexed, which  are  to  be  used  and  resorted  to  in  order  to  explain 
the  rights  and  obligations  of  the  parties  hereto,  in  all  cases 
not  herein  otherwise  specially  provided  for." 

IV.  And  these  defendants  further  allege  that  at  the  time 
of  the  execution  and  delivery  of  the  said  policy,  there  was  an- 
nexed thereto  a  printed  paper  containing  "proposals  for  in- 
suring" and  "conditions  of  insurance,"  together  with 
"classes  of  hazards,"  embracing  therein  articles  designated 
"Hazardous,"  "Extra-hazardous,"  and  "Memorandum  of 
special  rates,"  which  proposals  and  conditions  became  and 
were  part  of  the  contract,  and  by  which  it  was  agreed  and 
declared  that  [setting  forth  the  conditions  relied  on]. 

V.  These  defendants  deny  that  the  said  M . .  .  .  N.... 
fulfilled  or  performed  the  terms  and  conditions  imposed  upon 
and  assumed  by  him  in  and  by  the  said  policy,  and  the  pro- 
posals and  conditions  aforesaid;  but  on  the  contrary,  the  de- 
fendants, upon  information  and  belief,  aver  that  they,  the 
said  M .  . .  .  N . . . .  did  violate  the  same. 

VI.  They  further  allege  that  after  the  delivery  of  the  said 
policy,  and  before  the  loss  in  the  complaint  alleged,  and  on  or 

about  the  ....  day  of ,  19 . . ,  the  said  M N , 

without  the  knowledge,  approbation,  or  consent  of  the  de- 
fendants, and  against  their  will,  used  the  ....  story  of  the 
building  in  the  said  policy  mentioned,  or  suffered  the  same  to 
be  used,  as  and  for  a  [bookbindery]  and  continued  to  make,  or 


Chapter  XCVIII.]  1467  [Forms  2051,  2052. 

suffered  such  use,  from  thence  until  and  at  the  time  of  the 
fire  in  the  complaint  mentioned. 

VII.  And  these  defendants  further  allege  that  they  never 
knew  or  had  notice  that  the  said  building  was  so  improperly- 
used  and  occupied  until  after  the  said  fire;  that  they  never  in 
any  way  authorized  or  acquiesced  in  such  use  thereof;  that 
they  never  charged  or  received  any  premium  for  such  addi- 
tional risk. 

VIII.  They  further  allege  that  by  reason  of  such  wrong- 
ful and  improper  use  of  the  said  ....  story,  the  risk  assumed 
by  the  defendants  in  and  by  the  said  policy  became  and  was 
increased  and  rendered  mor€  hazardous  than  it  was  at  the 
time  the  said  policy  was  issued;  by  reason  whereof  the  said 
policy  became  void,  and  at  the  time  of  the  alleged  fire,  which 
they  admit  occurred,  they  were  not  insurers  of  the  said 
M ....  N ....  for  any  sum. 

IX.  These  defendanls,  further  answering,  deny  each  and 
every  allegation  in  said  complaint  contained  not  hereinbe- 
fore specifically  admitted. 

2051.  Unseaworthiness  of  vessel. 

I.  [Allege  provisions  of  policy,  as  in  Form  2047,  unless  it 
appears  by  the  complaint.] 

II.  That  at ,  and  in  the  course  of  said  voyage,  and 

in  reference  to  the  said  voyage,  and  to  any  damage  which  the 
said  ship  sustained  in  the  prosecution  thereof,  a  regular  sur- 
vey was  had  on  the day  of 19.  .,  upon  which 

survey  was  had  on  the day  of ,  19 . .,  upon  which 

survey  the  said  ship  was  thereby  declared  unseaworthy,  by 
reason  of  her  being  rotten  [or  state  particulars,  showing  a 
ground  of  her  condemnation  wholly  within  the  provisions  of  the 
policy]. 

2052.  Sale  of  damaged  goods  by  plaintiff,  and  that  de- 

fendants paid  deficiency. 

I.  That  the  invoice  value  of  the  said  [insured  goods] 
amounted  to dollars,  and  that  the  said  last-men- 
tioned amount  was  the  sum  insured  thereon  under  the  policy 
mentioned  in  the  complaint,  and  that  the  net  market-value 
of  the  said  [insured  goods],  if  the  same  had  not  been  damaged. 


Forms  2053,  2054.]  1468  [Chapter  XCVIII. 

was  estimated  by  S . . . .  C &  Co.,  by  whom  the  said  in- 
surance was  effected,  at  the  sum  of dollars. 

II.  That  the  said  [insured  goods]  were  sold  by  auction  in 

the  city  of ,  on  or  about  the  ....  day  of 19. ., 

by  order  of  the  said  S . . . .  C . . . .  &  Co. 

III.  That  the  proceeds  of  such  sale  amounted  to 

dollars;  thereby  showing  a  loss  of  ... .  per  cent,  on  the  above 
estimated  net  market-value  of  the  said  goods,  if  the  same  had 
not  been  damaged.  That  the  same  percentage  on  the  sum  in- 
sured on  the  said  goods  amounted  to dollars;  and 

that  the  defendants,  on  or  about  the  ....  day  of ,19.  ., 

paid  the  said  last-mentioned  sum,  together  with  the  expenses 
of  the  said  sale  by  auction,  to  the  said  S.  . . .  C. . . .  &  Co., 
and  that  the  said  S . . . .  C . . . .  &  Co.,  accepted  and  received 
such  payment  as  an  adjustment  and  settlement  of  the  dam- 
age or  injury  to  the  said  goods. 

2053.  Other  insurance,  without  consent. 

I.  The  defendant  alleges  that  the  said  insurance  policy 
provides  [here  set  forth  terms  of  condition  in  policy  prohibiting 
other  insurance,  if  the  same  be  not  set  forth  by  the  plaintiff  in 
his  complaint]. 

II.  That  at  the  time  of  the  issuance  of  the  said  policy  the 
said  property  had  been  previously  and  then  was  insured  in 
another  company,  to-wit,  the  A .  . . .  X . . . .  company,  in  the 

sum  of   dollars,  of  which  previous  insurance  this 

defendant  had  no  knowledge,  nor  did  this  defendant  consent, 
thereto,  nor  indorse  such  consent  upon  the  policy  described 
in  the  complaint  in  this  action.  [//  the  additional  insurance, 
was  effected  after  the  issuance  of  the  policy  in  suit,  vary  the 
foregoing  allegation  accordingly.] 

2054.  Action  not  commenced  within  time  limited  by 

policy. 

I.  The  defendant  alleges  that  the  said  insurance  policy 
provides  [here  set  forth  terms  of  provisions  requiring  action  to 
be  brought  on  the  policy  within  a  limited  time]. 

II.  That  the  said  fire  [or  loss]  occurred  on  the  ....  day  of 

,  19.  .,  and  that  this  action  was  commenced  by  the 

service  of  summons  on  the day  of ,  19. .,  which 


Chapter  XCVIII.]  1469  [Forms  2055-2057. 

was  more  than  ....  days  after  the  occurrence  of  the  said 
fire  [or  loss],  whereby  this  action  has  become  wholly  barred 
by  the  terms  of  the  said  policy. 

2055.  Cancellation  of  policy  before  loss. 

I.  The  defendant  alleges  that  the  said  policy  of  insurance 
contained  the  following  provision  [here  set  forth  provision 
allowing  cancellation,  if  it  be  not  set  forth  in  plaintiff's  com- 
plaint]. 

II.  That  on  the  ....  day  of ,  19. .,  this  defendant 

made  and  served  upon  the  plaintiff  a  notice  of  its  election  to 
cancel  said  policy,  of  which  notice  the  following  is  a  copy 
[copy  of  notice]. 

III.  That  at  the  time  of  the  service  of  said  notice  of  can- 
cellation the  defendant  tendered  to  the  plaintiff  the  sum  of 

dollars,  being  the  amount  of  unearned  premium 

upon  said  policy  upon  cancellation  thereof,  but  that  plaintiff 
refused  and  still  refuses  to  accept  said  unearned  premium,  or 
to  surrender  said  policy,  although  the  defendant  has  ever 
since  been  and  is  now  ready  and  willing  to  pay  to  the  plain- 
tiff said  unearned  premium,  and  now  brings  the  same  into 
court  with  this  answer  for  the  benefit  of  the  plaintiff,  if  he 
will  accept  the  same. 

2056.  That  death  occurred  while  insured  was  violating 

law. 

I.  The  defendant  alleges  that  said  policy  contains  the  fol- 
lowing provision  [here  insert  provision  containing  the  agree- 
ment relieving  the  company  from  liability  if  death  occurs  while 
the  insured  is  violating  law,  if  the  provision  is  not  already  set 
forth  in  the  complaint]. 

II.  The  defendant  further  alleges  that  the  said  insured 

died  while  engaged  in  violating  the  laws  of  the  state  of 

and  in  consequence  thereof,  to-wit,  said  death  occurred  while 
deceased  was  [here  state  crime  or  offense  in  which  deceased  was 
engaged,  with  particularity  and  certainty]. 

2057.  That  insured  violated  policy  by  traveling  beyond 

territory  liinited. 
I.    That  the  said  policy  of  insurance  described  in  the  com- 
plaint herein  contained  a  provision  to  the  effect  that  the  same 


Forms  2058,  2059.]  1470  [Chapter  XCVIII. 

should  be  void  if  the  said  assured  should  without  written  con- 
sent of  this  defendant  go  beyond  [here  state  limits  fixed  by 
policy]. 

II.     [  Upon  information  and  belief]  that  on  or  about  the 

....  day  of ,  19.  .,  and  w^hile  said  policy  was  in  full 

force,  the  said  assured,  without  the  consent  of  this  defendant, 
went  [here  state  where],  whereby,  as  this  defendant  claims  and 
insists,  said  policy  became  and  is  wholly  void. 

2058.  That   material   statements   in   application   were 

false. 

I.  That  the  said  policy  of  insurance  mentioned  in  the 
complaint  was  founded  upon  and  issued  in  consideration  of; 
the  statements  made  by  the  said  E.  .  . .  F.  .  .  .  in  his  written 
application  for  insurance,  which  said  application  was  made 
by  said  assured  and  presented  to  this  company  on  or  about 
the day  of ,19.. 

II.  That  said  application  so  made  contained  the  following 
question,  viz.  [state  question],  and  that  the  said  assured  an- 
swered the  said  question  in  writing  and  made  his  said  answer 
a  part  of  said  application,  as  follows  [state  answer]. 

III.  That  the  said  answer  so  made  in  said  application  was; 
willfully  false  when  made,  and  known  so  to  be  by  the  said  as- 
sured: that  the  said  assured  was  not  at  that  time  [here 
negative  the  false  statement],  but  on  the  contrary,  was  [here 
state  the  real  fact]. 

IV.  That  the  said  statement  so  made  by  said  assured  wag 
material  to  the  risk,  and  was  relied  upon  and  believed  by  this' 
defendant,  and  that  the  said  policy  was  thereafter  issued  by 
reason  of  said  statement,  and  in  reliance  thereon,  and  not 
otherwise. 

2059.  Answer  that  building  was  unoccupied. 

I.  That  said  policy  contained  the  following  provision 
[insert  provision  prohibiting  vacancy  without  consent]. 

II.  That  the  building  described  in  said  policy  became 

vacant  and  unoccupied  on  or  about  the  ....  day  of , 

19.  .,  and  so  remained  vacant  and  unoccupied  up  to  the  time 
of  the  said  fire,  and  that  this  defendant  at  no  time  consented 


Chapter  XCVIIL]  1471  [Forms  2060,  2061. 

that  such  building  might  remain  vacant  or  unoccupied,  nor 
was  such  consent  ever  indorsed  upon  said  policy,  whereby- 
said  policy  became  wholly  void. 

2060.  Voluntary  assignment  or  mortgage  by  assured. 

I.  That  the  said  policy  of  insurance  contained  the  follow- 
ing provision  [insert  provision  prohibiting  the  change  of  title 
of  property  or  mortgage]. 

II.  That  on  or  about  the  ....  day  of ,  19. .,  the 

said  assured  duly  made  and  executed  and  delivered  a  volun- 
tary assignment  for  the  benefit  of  his  creditors  to  one  L . . . . 
M .  . ,  . ,  which  assignment  conformed  in  all  respects  to  the  re- 
quirements of  the  statutes  of  the  state  of  ....  and  was  fully 
perfected  by  the  execution  and  filing  in  the  proper  office  of  all 
bonds,  schedules,  inventories  and  other  papers  required  by 
law  to  be  executed  or  filed  in  order  to  consitute  a  complete 
voluntary  assignment  under  the  laws  of  said  state. 

[II.     //  it  be  claimed  that  policy  is  avoided  by  mortgage: 

That  on  or  about  the   ....   day  of   ,  19.  .,  the  said 

plaintiff  executed  and  delivered  to  one  0 . . . .  P .  . . .  a  mort- 
gage upon  said  property  for  the  sum  of dollars,  with- 
out the  knowledge  of  the  defendant  and  without  any  consent 
on  the  part  of  this  defendant,  either  indorsed  upon  said 
policy,  or  otherwise,  whereby  said  policy  has  become  wholly 
void.] 

2061.  Outline  of  answer  by  fraternal  benefit  order,  al- 

leging failure  to  conform  to  constitution  or  by- 
laws. 

I.     That  the  said  assured  made  a  written  application  for 

membership  in  the  defendant  order  on  or  about  the   

day  of  ,  19..,  and  that  the  said  benefit  certificate 

mentioned  in  the  complaint  was  issued  in  reliance  upon  said 
application,  and  the  statements  and  agreements  therein  con- 
tained; that  among  the  said  statements  and  agreements  was 
an  agreement  that  the  said  assured  should  be  governed  by  all 
the  provisions  of  the  consitution  and  by-laws  of  said  order 
then  existing,  or  which  might  thereafter  be  adopted,  and  that 
failure  to  conform  to  such  provisions  or  any  of  them  should 
avoid  the  said  certificate. 


Form  2061.]  1472  [Chapter  XCVIII. 

II.  That  the  constitution  of  said  order  then  contained 
and  still  contains  the  following  provision  [insert  provision 
claimed  to  have  been  violated]. 

III.  That  on  or  about  the  ....  day  of ,  19. .,  the 

said  assured  [here  state  violation  of  the  provision  with  particu- 
larity], and  that  by  reason  thereof  the  said  certificate  became 
and  is  void  and  of  no  efTect. 


CHAPTER  XCIX. 

DEFENSES  IN  ACTIONS  ON  LEASES. 


2062.  Denial  of  hiring. 

2063.  Denial  of  execution  of  lease. 

2064.  Denial  by  assignee. 

2065.  Assignee's     assignment     to 

third  person. 

2066.  Tender  of  rent  upon  the  land. 

2067.  Eviction. 

2068.  The  same;  as  a  defense  to  one 

instalment. 

2069.  Surrender  of  the  premises. 

2070.  That  the  landlord  accepted 

an  assignee  as  his  tenant. 


2071.  By  a  surety,  alleging  exten- 

sion of  time. 

2072.  By  surety,   showing  neglect 

to  collect  from  the  princi- 
pal, or  give  notice  of  non- 
payment. 

2073.  Destruction  or  serious  injury 

to  premises,  and  surrender 
thereof. 

2074.  Dilapidation  by  which  prem- 

ises are  made  unfit  for  oc- 
cupation. 


2062.  Denial  of  hiring. 

The  defendant  denies  that  he  at  any  time  hired  of  the 
plaintiff  the  premises  described  in  the  complaint  as  therein 
alleged. 

2063.  Denial  of  execution  of  lease.  ^ 

The  defendant  denies  that  the  plaintiff  at  any  time 
executed  or  delivered  to  the  defendant  or  that  the  defendant 
at  any  time  executed  or  received  from  the  plaintiff  any  lease 
of  the  premises  described  in  said  complaint,  as  therein  al- 
leged. 

2064.  Denial  by  assignee. 

The  defendant  denies  that  any  assignment  of  the  lease  de- 
scribed in  the  complaint  was  at  any  time  made  to  or  accepted 
by  the  defendant,  and  further  denies  that  the  defendant  at 
any  time  occupied  the  said  premises  under  the  said  lease. 

2065.  Assignee's  assignment  to  third  person. 

That  before  the  rent  claimed  in  the  complaint  became  due. 

and  on  or  about  the  ....  day  of ,  19 . . ,  this  defendant 

assigned  and  transferred  all  his  interest  in  said  lease  to  one 
E . . . .  F . . . .  who  then  entered  into  possession  of  said  prem- 
ises and  so  continued  when  said  rent  became  due. 
93 


Forms  2066-2068.]  1474  [Chapter  XCIX. 

2066.  Tender  of  rent  upon  the  land. 

I.  That  he  was  present  at  the  said  demised  dwelling- 
house  at  the  time  when  the  said  ........  dollars  became  due 

as  aforesaid,  to-wit,  on  the  ....  day  of ,  19.  .,  for  a 

reasonable  time,  to-wit,  the  space  of  one  hour,  before  sunset, 
and  there  continued  until  a  reasonable  time,  to-wit,  one  hour 
after  sunset  on  the  same  day,  and  during  all  the  interval  of 

time  aforesaid  was  there,  ready  to  pay  the  said   

dollars  to  the  plaintiff. 

II.  That  neither  the  said  plaintiff,  nor  any  other  person 
on  his  behalf,  during  any  part  of  said  time,  was  there  ready 
to  receive  the  same. 

III.  That  since  the  said  day  the  defendant  has  always 

been,  and  still  is,  ready  to  pay  the  said dollars  to 

the  plaintiff;  and  he  now  brings  the  said   dollars 

here  into  court,  ready  to  be  paid  to  the  said  plaintiff,  if  he 
will  accept  the  same. 

2067.  Eviction.^ 

I.  That  after  the  making  of  the  lease  [or,  after  the  letting] 
mentioned  in  the  complaint,  and  before  any  part  of  the  rent 
in  the  complaint  demanded  *  became  payable,  the  plaintiff 
forcibly  entered  upon  the  premises,  and  removed  the  de- 
fendant therefrom  [or,  from  a  part  thereof,  to-wit,  describ- 
ing the  part],  and  kept  him  out  of  possession  from  thence  until 
the  ....  day  of ,  19. .  [or,  until  after  said  rent  be- 
came due]. 

2068.  The  same;  as  a  defense  to  one  instalment. 

The  defendant  alleges  that  as  to  the  last  instalment  men- 
tioned in  the  complaint,  after  the  alleged  lease  was  made 
[or,  after  the  alleged  letting]  and  before  said  instalment 
[continue  as  in  preceding  form  from  the  *]. 

1  For  various  forms  of  allegation  727) ;  but  probably  under  the  code, 

of  eviction  see  forms  of  complaints  the  facts  should  be  stated.     The 

for  breach  of  covenants  in  Chapter  eviction  must  be  alleged  to  have 

XXXIX,  ante.     Prior  to  the  code  taken  place  before  the  rent  fell  due. 

constructive    eviction    by    annoy-  McCarthy  v.   Hudson,   24   Wend, 

ances  committed  by  the  landlord  291;  Vernam  v.  Smith,   75  N.  Y. 

might  be  shown  under  this  plea,  327. 
(Dyett    V.    Pendleton,    8    Cowen, 


Chapter  XCIX.]  1475  [Forms  2069-2072. 

2069.  Surrender  of  the  premises. 

The  defendant  alleges  that  before  the  rent  claimed  in  the 
complaint  became  due  [or,  before  the  alleged  breaches  set 
forth  in  the  complaint  herein]  the  defendant  surrendered  to 
the  plaintiff  the  demised  premises,  and  all  the  residue  of  the 
said  term  then  to  come,  and  unexpired  therein;  and  the 
plaintiff  then  accepted  such  surrender,  and  took  possession  of 
the  said  premises. 

2070.  That  the  landlord  accepted  an  assignee  as  his 

tenant. 

I.  The  defendant  alleges  that  before  the  rent  [or,  the  last 
instalment  of  rent]  claimed  in  the  complaint  became  due 
[or,  before  the  breaches  alleged  in  said  complaint]  the  de- 
fendant duly  assigned  [by  deed]  all  his  estate  and  term  of 
years  then  to  come  and  unexpired  in  the  demised  premises  to 
M . .  . .  N . . . . ,  who  then  entered  into  the  same,  and  was  pos- 
sessed thereof  for  the  residue  of  said  term. 

II.  That  the  plaintiff  then  had  notice  thereof,  and  after- 
wards accepted  from  the  said  M .  .  .  .  N . , .  .  rent  under  the 
lease  [or,  agreemicnt]  mentioned  in  the  complaint,  and  ac- 
cepted the  said  M N as  his  tenant  of  said  premises. 

2071.  By  a  surety,  alleging  extension  of  time.* 

I.  The  defendant  alleges  that  on  the  ....  day  of , 

19. .,  at [or  at  some  time  and  place  unknown  to  the 

defendant],  the  plaintiff  agreed  M'ith  said  [debtor],  in  consid- 
eration of dollars  [or,  for  a  valuable  consideration], 

to  forbear  and  extend  the  time  of  payment  of  the  said  rent 
guaranteed  by  the  defendant  ....  days  [or,  from  the  .... 

day  of 19. .,  on  which  the  same  was  due,  until  the 

....  day  of ,19..] 

II.  That  the  defendant  had  no  knowledge  of  [or  did  not 
assent  to]  the  said  agreement  to  extend  the  time. 

2072.  By  surety,  showing  neglect  to  collect  from  the 

principal,  or  give  notice  of  non-payment. 
I.     The  defendant  alleges  that  the  plaintiff  never  gave  this 

'This  is  an  affirmative  defense,  order  to  admit  evidence  of  the  fact, 
and   must   be  specially  pleaded  in 


Forms  2073,  2074.]  1476  [Chapter  XCIX. 

defendant  any  notice  of  the  alleged  non-payment  of  said  rent 
by  said  [debtor]  until  more  than  ....  months  after  the  ter- 
mination of  the  lease,  and  has  never  made  any  demand  on  this 
defendant  for  payment  of  said  rent,  except  by  the  commence- 
ment of  this  action. 

II.  That  at  the  time  alleged  in  the  complaint  as  the  time 
when  the  said  supposed  debt  became  due  the  said  [debtor] 
was  solvent,  and  able  to  pay  the  same,  and  it  might  have  been 
collected  from  him  if  the  plaintiff  had  used  due  and  diligent 
effort;  but  he  unreasonably  and  improperly  neglected  so  to  do. 

III.  That  since  that  time,  and  before  said  ....  months 
thereafter  had  elapsed,  the  said  [debtor]  became,  and  now  is, 
wholly  insolvent  and  unable  to  pay  the  said  debt;  and  has 
failed  to  make  payment  thereof,  if  at  all,  through  the  un- 
reasonable neglect  of  the  plaintiff  to  proceed  in  the  collec- 
tion of  the  same  from  him,  or  to  give  this  defendant  due 
notice  of  his  default. 

2073.  Destruction  or  serious  injury  to  premises,  and  sur- 

render thereof.* 

I.     The  defendant  alleges  that  on  or  about  the  ....  day 

of ,  19. .,  without  fault  or  neglect  on  his  part,  the  said 

dwelling-house  [or  other  building]  was  totally  destroyed  by 
fire  [or,  was  partially  destroyed  by  fire,  or  otherwise  state  the 
injury  according  to  the  facts],  so  that  the  same  became  and 
was  untenantable  and  unfit  for  occupancy,  and  that  on  ac- 
count of  such  destruction  [or  injury]  and  on  the  ....  day  of 

,  19..,  this  defendant,  by  reason  thereof,  quit  and 

surrendered  possession  of  the  said  building  and  premises 
[and  the  plaintiff  thereupon  accepted  such  surrender  and 
went  into  possession  thereof,  and  has  since  retained  such  pos- 
session]. 

2074.  Dilapidaton  by  which  premises  are  made  unfit  for 

occupation.* 

I.     The  defendant  alleges  that  on  or  about  the day 

of ,  19. .,  without  negligence  on  the  part  of  the  de- 

»This   is   not   a   defense   unless  Stats.  1913  sec.  2196a;  Ariz.  R.  S. 

made  so  by  statute,  or  by  the  pro-  1913  sec.  4713;  Minn.  Gen.  Stats, 

visions  of  tlie  lease.     This  form  is  1913  sec.  6810. 

drawn  to  meet  the  terms  of  Wis.  <  This  form  is  intended  to  meet 


Chapter  XCIX.]  1477  [Form  2074. 

fendant,  said  dwelling-house  became  dilapidated  and  out  of 
repair  in  this  [here  state  nature  of  dilapidations,  and  cause 
thereof],  so  that  said  building,  by  reason  of  said  dilapidations, 
became  and  remained  unfit  for  the  accommodation  of  human 
beings. 
11.     That  thereafter,  and  on  or  about  the   ....   day  of 

,  19. .,  this  defendant  duly  notified  the  plaintiff  [in 

writing,  if  notification  was  written]  of  the  fact  of  such  dilapid- 
ation and  requested  the  plaintiff  to  repair  the  same,  but  that 
the  said  plaintiff  refused  and  neglected  to  make  such  re- 
pairs, and  that  the  defendant  thereafter,  and  on  the   .... 

day  of ,  19 .  .,  vacated  the  said  premises  and  has  never 

since  that  time  occupied  the  same,  whereby  the  defendant  al- 
leges that  he  has  been  and  is  discharged  from  any  obliga- 
tion to  pay  the  rent  claimed  in  the  complaint. 

the  requirements  of  Cal.  C.  C.  1906  C.  C.  1908  sec.  1433,  1434;  Okla. 

sec.  1941,  1932;  Mont.  Rev.  Codes  Comp.  Laws  1909  sec.  1170,  1171. 

1907  sec.  5226,  5227;  N.  Dak.  Rev.  See  note  to  next  preceding  form. 
Codes  1905  sec.  5527,  5528;  S.  Dak. 


CHAPTER  0. 
DEFENSES  IN  ACTIONS  ON  JUDGMENTS. 

2075.  Denial  of  judgment.  I  2078.  Payment  of  judgment. 


2076.  Invalidity   of  judgment  be- 

cause of  failure  to  obtain 
jurisdiction  of  the  person. 

2077.  Failure  to  obtain  jurisdictjon 

of  non-resident  defendant. 


2079.  Subsequent  vacation  of  judg- 

ment. 

2080.  Fraud  in  the  recovery  of  the 

judgment. 


2075.  Denial  of  judgment.^ 

I.     The  defendant  denies  that  the  pretended  judgment  set 

forth  in  the  complaint  was  ever  rendered  in  the    

court  as  in  said  complaint  alleged,  and  further  denies  that  the 
said  pretended  judgment  was  ever  docketed  in  the  ofhce  of 
the  clerk  of  said  court,  as  in  said  complaint  alleged. 

2076.  Invalidity  of  judgment  because  of  failure  to  ob- 

tain jurisdiction  of  the  person. 

I.  The  defendant  alleges  that  no  summons  [or  otherwise 
properly  name  the  original  process  according  to  the  statute  of 
the  particular  state]  was  at  any  time  served  upon  him  in  the 
action  described  in  the  complaint  herein,  and  the  defendant 
further  alleges  that  he  never  appeared  in  person  or  by  at- 
torney in  the  said  action. 

2077.  Failure  to  obtain  jurisdiction  of  non-resident  de- 

fendant. 

I.  The  defendant  alleges  that  the  action  in  which  the 
supposed  judgment  against  him  was  alleged  to  have  been  re- 
covered arose  upon  an  alleged  contract  [or  otherwise  state 
the  nature  of  the  action]. 

^  If  the   defense   consists   of   an  record,  some  one  of  the  following 

attempt  to  impeach  the  validity  of  forms  should  be  used.     This  form 

a    judgment    regular    in    form    on  simply    denies   the   existence   of   a 

the  ground  of  fraud  or  lack  of  juris-  record  judgment, 
diction    by    facts    outside    of    the 


Chapter  C]  1479  [Forms  2078-2080. 

II.  That  when  the  action  was  commenced  this  defendant 

was  a  non-resident  of  the  state  of and  a  resident  of 

the  state  of 

III.  That  he  never  appeared  in  that  action,  and  never  was 

personally  served  in  the  state  of with  summons  [or 

otherwise  properly  name  the  original  process]  therein. 

IV.  That  when  the  said  supposed  judgment  was  rendered 
the  said  court  had  acquired  no  jurisdiction  of  the  person  of 
the  defendant  for  the  following  reasons  [here  state  particularly 
the  defect  or  defects  in  the  proceedings  for  publication  of  the 
summons,  or  the  failure  to  make  publication  or  mailing,  by 
reason  of  which  no  Jurisdiction  was  acquired], 

2078.  Payment  of  judgment. 

The  defendant  alleges  that  on  the  ....  day  of  , 

19. .,  and  before  the  commecement  of  this  action,  this  de- 
fendant paid  to  the  plaintiff dollars,  in  full  settle- 
ment and  discharge  of  said  judgment,  and  of  the  alleged  cause 
of  action  upon  which  the  same  was  founded. 

2079.  Subsequent  vacation  of  judgment. 

That  on  or  about  the  ....  day  of ,  19. .,  upon 

motion  duly  made,  the  said court  duly  m.ade  and  en- 
tered an  order  setting  aside  and  vacating  the  said  judgment 
described  in  the  complaint. 

2080.  Fraud  in  the  recovery  of  the  judgment.'' 

I.  The  defendant  alleges,  by  way  of  counter-claim,  that 
after  the  commencement  of  the  action  mentioned  in  the 
complaint,  the  said  plaintiff  came  to  this  defendant  and,  with 
intent  to  deceive  him,  and  prevent  him  from  defending  it, 
falsely  and  fraudulently  represented  [here  state  representa- 

*  In  Wisconsin  relief  against  a  ment,  but  for  the  purpose  of  pre- 
judgment obtained  against  a  party  venting  its  inequitable  enforcement- 
through  his  mistake,  inadvertance,  If  such  an  action  may  be  main- 
surprise,  or  excusable  neglect  must  lained,  it  would  seem  to  follow  that 

be  obtained  by  motion  within  one  .i  „ „  ^„i;„f  ^„    u    „ui         .  . 

year  after  notice.  Wis.  Stats.  1913  '^^  '^'J"'  relief  may  be  obtained  by 
sec.  2832.  However,  if  fraud  or  equitable  counter-claim,  hence  this 
collusion  be  charged,  an  action  in  defense  is  pleaded  as  a  counter- 
equity  may  be  maintained,  not  for  claim.  Crowns  v.  Forest  Land  Co., 
the  purpose  of  vacating  the  judg-  102  Wis.  97;  78  N.  W.  433. 


Form  2080.]  1480  [Chapter  G. 

tions,  e.  g.,  thus]:  that  he,  said  plaintiff,  intended  to  and 
would  dismiss  said  action,  and  that  this  defendant  need  not 
appear  therein.  [The  false  representations  or  other  fraud  re- 
lied on  must  be  fully  set  forth.] 

II.  That,  relying  on  said  representations,  this  defendant 
omitted  to  appear  therein,  as  he  otherwise  would  have  done. 

III.  That  the  plaintiff,  thereafter,  and  without  the 
knowledge  of,  or  notice  to,  this  defendant,  proceeded  to 
judgment  therein,  "with  intent  to  defraud  him. 

IV.  That  the  defendant  had  no  knowledge  of  the  exist- 
ence of  said  judgment  until  the  ....  day  of ,  19. . 

V.  That  the  defendant  was  not  indebted  to  the  plaintiff 
in  the  sum  claimed  in  the  complaint  in  said  action,  nor  in  any 
sum  whatever,  but  had  and  still  has  a  complete  and  perfect 
defense  to  said  action,  to-wit  [the  defense  should  be  fully 
stated  as  in  a  pleading]. 

WHEREFORE  the  defendant  demands  that  said  judg- 
ment be  set  aside  and  vacated,  that  the  plaintiff  be  per- 
petually enjoined  from  in  any  manner  collecting  or  enforcing 
the  same,  and  for  such  other  relief  as  may  be  equitable,  with 
his  costs. 

In  Minnesota,  under  Minn.  Gen.  In  the  other  states  covered  by  this 

Stats.  1913  sec.  7910,  an  action  in  work  the  subject  is  covered  by  the 

equity  to  set  aside  a  judgment  for  following    statutes:      Ariz.    R.    S. 

fraud  may  be  brought  within  three  1913  sec.  584;  Ark.  Dig  of  Stats, 

years  after  discovery  of  the  fraud,  1904  sec.  4431-4433;  Cal.  C.  C.  P. 

but  the  complaint  must  show  that  1906   sec.   473,    1916;    Colo.    Code 

the  action  was  brought  within  the  Ann.    1911    sec.    81;    Idaho    Rev. 

statutory  time,   and  that   the  de-  Codes   1908  sec.  4439-4442;   Iowa 

fendant  was  free  from  contributory  Ann.   Code   1897  sec.  3755,   4091; 

negligence.      Schweinfurter   v.  Kans.  Gen.  Stats.  1909  sees.  5899, 

Schmal,  69  Minn.  418;  72  N.  W.  5900  and  6191;  Mont.  Rev  Codes 

702.      Doubtless    the    same    relief  1907  sees.   6794,   6795;   Mo.  R.  S. 

could    be    obtained    by    equitable  1909  sec.  2022;  Neb.  R.  S.  1913  sees, 

counter-claim  in  an  action  to  en-  7883,   8207;  N.   Dak.   Rev.   Codes 

force  the  judgment,  but  the  allega-  1905  sec.  7063;  S.  Dak.  C.  C.  P. 

tions  should  be  sufficient  to  sustain  1908  sees.   301,   302;  Okla.  Comp. 

the  counter-claim  as  a  compliant.  Laws  1909  sec.  5825;  Oregon  Laws 

Value  V.  Miller,  69  Minn.  440;  72  1910    sec.    174;    Tex.    Civ.    Stats. 

N.  W.  453.    The  facts  showing  the  Ann.  1913  art.  2019;  Utah  Comp. 

defendant's    freedom    from    negli-  Laws  1907  sec.  3293;  Wash.  Rem. 

gence    must   clearly    and    affirma-  and  Bal.  Code  1910  sees.  399,  464; 

tively    appear.      Schweinfurter   v.  Wyo.  Comp.  Stats.  1910  sees.  4601, 

Schmal,  suprcu  4650. 


CHAPTER  CI. 

DEFENSES  IN  ACTIONS  ON  COVENANTS. 

2081.  Denial  of  breach  of  covenant.   |  2082.  Accord  and  satisfactioa. 

2081.  Denial  of  breach  of  covenant. 

I.  The  defendant  aUeges  that  he  duly  performed  all  the 
conditions  of  the  contract  set  forth  in  the  complaint  on  his 
part  to  be  performed,  and  [here  state  the  performance  follow- 
ing the  words  of  the  covenant]. 

2082.  Accord  and  satisfaction. 

I.     [Follow  Form  1890.] 

[For  other  forms  see  Chapter  LXXXVI  and  other  Chapters 
giving  forms  of  defenses  in  the  various  other  actions  on  con- 
tract.] 


CHAPTER  CII. 

DEFENSES  IN  ACTIONS  ON  CONTRACTS  OF 
EMPLOYMENT. 


2083.  Denial    of    performance    by 

plaintiff. 

2084.  Performance  by  defendant. 

2085.  Plaintiff's  failure  preventing 

defendant's  performance. 

2086.  Alleging  plaintiff's  discharge 

for  misconduct. 

2087.  Abandonment  of  the  employ- 


ment by  plaintiff. 

2088.  Termination    of    service    by 

notice  under  the  terms  of 
the  contract. 

2089.  Discharge     on     account     of 

plaintiff's  incompetency. 

2090.  Breach  of  entire  contract  by 

plaintiff. 


2083.  Denial  of  performance  by  plaintiff. 

I.  The  defendant  denies  that  the  said  plaintiff  has  per- 
formed the  conditions  of  said  contract  of  employment  men- 
tioned in  the  complaint  on  his  part  to  be  performed;  and  on 
the  contrary  thereof  alleges  that  the  said  plaintiff  has  wholly 
omitted  to  [here  state  breach  specifically  as  in  a  complaint]. 

2084.  Performance  by  defendant. 

I.  The  defendant  alleges  that  he  fully  perform.ed  all  the 
conditions  of  said  contract  of  employment  on  his  part  to  be 
performed,  and  on  the  ....  day  of ,  19. .,  manufac- 
tured the  said  [name  articles]  and  dehvered  the  same  to  the 
plaintiff  [or  tendered  the  same  to  the  plaintiff  and  has  ever 
since  been  and  still  is  ready  and  willing  to  deliver  the  same, 
but  that  the  plaintiff  refused  and  still  refuses  to  accept  the 
same,  and  pay  therefor,  or  otherwise  fully  set  forth  the  acts  of 
performance  with  particularity]. 

2085.  Plaintiff's    failure    preventing    defendant's   per- 

formance. 

I.  That  at  the  time  of  making  said  agreement,  the  plain- 
tiffs agreed,  in  writing,  with  this  defendant,  that  in  consider- 
ation that  he  would  deliver  to  them,  at  their  warehouse  in 

,  the  said  quantity  of  shelled  corn,  they,  the  said 

plaintiffs,  would  pay  this  defendant  twenty  cents  a  bushel 


Chapter  CII.]  1483  [Forms  2086-2088.  * 

therefor,  and  would  furnish  to  this  defendant  a  thresher  to 
thresh  said  corn  for  one  cent  a  bushel. 

II.  That  the  said  plaintiffs  failed  and  refused  to  furnish 
said  thresher,  though  this  defendant,  on  the  ....  day  of 
19..,  requested  them  so  to  do;  whereby  this  de- 
fendant was  disabled  from  performing  his  said  contract. 

2086.  Alleging  plaintiff's  discharge  for  misconduct. 

I.  The  defendant  alleges  that  by  the  terms  of  said  con- 
tract of  employment  it  was  provided  that  the  plaintiff 
should  [here  set  forth  terms  of  the  agreement  which  the 
plaintiff  breached,  also  set  forth  provision  authorizing  dis- 
charge if  there  be  any]. 

II.  That  notwithstanding  the  said  agreement  on  the 
part  of  the  said  plaintiff,  and  in  violation  theieof,  the  said 

plaintiff  on  and  between  the  ....  day  of ,  19.  .,  and 

the  ....  day  of ,  19 .  . ,  did  not  [here  negative  perform- 
ance of  the  agreement  in  question,  and  state  affirmatively  the 
misconduct  charged,  as  in  a  complaint]. 

III.  That  by  reason  of  the  said  violation  of  his  said  agree- 
ment by  the  said  plaintiff,  this  defendant  on  the  ....  day  of 
,  19.  .,  discharged  the  said  plaintiff  from  his  employ- 
ment, as  he  of  right  might  do,  and  that  such  discharge  con- 
stitutes the  supposed  breach  of  the  contract  of  employ- 
ment aforesaid,  which  is  alleged  in  the  complaint. 

2087.  Abandonment  of  the  employment  by  plaintiff. 

I.  The  defendant  alleges  that  on  or  about  the  ....  day 
of  ,  19..,  the  plaintiff  wilfully  abandoned  the  em- 
ployment of  the  defendant,  and  thereafter  refused  to  render 
any  service  to  defendant  under  his  said  contract  of  employ- 
ment, although  requested  by  defendant  so  to  do. 

2088.  Termination  of  service  by  notice  under  the  terms 

of  the  contract. 

I.  The  defendant  alleges  that  the  said  contract  of  em- 
ployment provided  among  other  things  that  [here  set  forth 
the  provisions  of  the  contract  providing  for  the  termination  of  the 
employment  by  notice,  e.  g.,  either  party  thereto  might  term- 
inate the  same  by  giving  to  the  other  party  thirty  days. 


Forms  2089,  2090.]  1484  [Chapter  CII. 

notice  in  writing  of  his  desire  and  intention  to  terminate  said 
employment.  //  the  provision  be  set  forth  in  the  complaint 
this  allegation  will,  of  course,  be  unnecessary]. 

II.     That  pursuant  to  the  terms  of  said  contract,  and  on 

the day  of ,  19. .,  this  defendant  gave  to  the 

plaintiff  a  written  notice  stating  that  he  desired  to  and  did 
thereby  terminate  said  contract  of  employment  on  the  .... 

day  of ,  19. ,,  whereby  the  said  contract  becam.e  and 

was  terminated  on  said  last  named  date,  and  the  defend- 
ant relieved  from  all  liability  thereunder;  and  defendant 
denies  that  plaintiff  has  rendered  any  service  to  the  defend- 
ant after  said  last-named  date  under  said  contract  or  other- 
wise. 

2089.  Discharge  on  account  of  plaintiff's  incompetency. 

I.  The  defendant  alleges  that  by  the  said  contract  of  em- 
ployment the  plaintiff  agreed  to  perform  for  the  defendant 
the  services  of  a  competent  engineer  in  charge  of  defendant's 
stationary  engine  [or  otherwise  state  the  character  of  the  ser- 
vice], which  services  the  plaintiff  at  the  time  of  the  con- 
tract represented  himself  able  and  competent  to  perform. 

II.  That  the  defendant,  relying  on  the  truth  of  such  rep- 
resentation, thereupon  entered  into  said  contract  of  employ- 
ment, but  that  the  plaintiff  was  not  a  competent  engineer, 
and  was  not  in  fact  a  competent  stationary  engineer  and  un- 
able to  perform,  and  did  not  in  fact  perform  the  services 
of  such  an  engineer  in  this  [here  set  forth  the  nature  of  the  in- 
competency as  fully  as  possible]. 

III.  That  by  reason  of  the  plaintiff's  aforesaid  incom- 
petence on  the day  of ,  19 . ,,  the  defendant  dis- 
charged the  said  plaintiff  as  he  lawfully  might  do. 

2090.  Breach  of  entire  contract  by  plaintiff. 

I.  That  the  services  mentioned  in  the  complaint  were 
rendered  under  an  express  and  entire  contract  by  the  terms 
of  which  plaintiff  agreed  to  render  services  to  the  defendant 
for  the  term  of  one  year  from ,  19. .,  at  a  compensa- 
tion of dollars  monthly  to  be  paid  at  the  end  of  each 

month. 

II.  That  on  the day  of ,  19. .,  the  plaintiff 

in  violation  of  his  said  contract  and  without  just  cause  or 


Chapter  CIL]  1485  [Form  2090. 

provocation  abandoned  his  said  employment  and  refused  to 
carry  out  said  contract  whereby  the  defendant  was  released 
from  any  further  obligation  to  the  plaintiff  under  said  con- 
tract. 

III.  That  the  defendant  had  fully  paid  to  the  plaintiff  all 
sums  which  had  become  due  to  him  under  said  contract, 
prior  to  such  abandonment  by  the  plaintiff. 


CHAPTER  cm. 

DEFENSES  IN  ACTIONS  OF  BREACH  OF  PROMISE 
OF  MARRIAGE. 


2091.  Denial  of  promise. 

2092.  Denial    of    plaintiff's    readi- 

ness. 

2093.  Denial  of  breach. 


2094.  Bad  character  of  plaintiff  at 

time  of  promise. 

2095.  Bad    character    of    plaintiff 

after  promise. 


2091.  Denial  of  promise. 

The  defendant  denies  that  he  at  any  time  promised  or 
agreed  to  marry  the  plaintiff,  as  in  said  complaint  alleged. 

2092.  Denial  of  plaintiff's  readiness. 

The  defendant  denies  that  the  plaintiff  has  at  any  time 
been  ready  or  willing  to  marry  the  defendant,  and  defendant 
denies  that  the  plaintiff  at  any  time  offered  to  marry  the  de- 
fendant, as  in  the  said  complaint  alleged. 

2093.  Denial  of  breach. 

The  defendant  denies  that  he  at  any  time  refused  to  marry 
the  plaintiff,  but  on  the  contrary  thereof  alleges  that  on  or 

about  the  ....  day  of ,  19.  .,  he  offered  to  marry  the 

plaintiff,  and  ever  since  said  date  has  been  and  now  is  ready 
and  willing  to  marry  the  plaintiff,  which  fact  the  plaintiff 
well  knew. 


2094.    Bad  character  of  plaintiff  at  time  of  promise. 

I.  The  defendant  alleges  that  at  the  time  of  the  making  of 
the  promise  in  the  said  complaint  alleged  the  plaintiff  was  un- 
chaste [or  habitually  intemperate],  and  generally  reputed 
among  her  neighbors  so  to  be. 

II.  That  defendant  was  wholly  ignorant  thereof  at  that 
time. 

III.  That  upon  being  informed  thereof,  the  defendant 
refused  to  marry  the  plaintiff. 


Chapter  CIIL]  1487  [Form  2095. 

2095.     Bad  character  of  plaintiff  after  the  promise. 

I.  That  after  the  time  mentioned  as  the  time  of  said  sup- 
posed promise,  and  on  the   ....   day  of   19..,  at 

,  the  plaintiff,  without  the  connivance  of  the  defend- 
ant, had  carnal  connection  with  one  M . . . .  N . . . , 

II.  [As  III  in  preceding  form.] 


CHAPTER  CIV. 

DEFENSES  IN  ACTIONS  ON  SALES.* 


2096.  Alleging  breach  of  contract 

as  to  delivery. 

2097.  The  same,  as  to  quality. 

2098.  Breach  of  warranty  in  sale. 

2099.  That   goods   did   not   corre- 

spond to  contract. 

2100.  That   goods   did   not   corre- 

spond to  sample. 

2101.  Denial  of  plaintiff's  perform- 

ance. 


2102.  Another   form,    sale   of  real 

property. 

2103.  Abandonment  of  contract  by 

plaintiff. 

2104.  Excuse  for  defendant's  non- 

performance. 

2105.  Payment. 

2106.  Rescission   by   mutual   con- 

sent. 


2096.  Alleging  breach  of  contract  as  to  delivery. 

I.  The  defendant  alleges  that  it  was  part  of  the  agree- 
ment of  sale  referred  to  in  the  complaint,  that  the  plaintiff 
should  deliver  the  said  goods  sold,  at  .... 

II.  That  the  said  goods  have  not  been  so  delivered,  nor 
tendered,  and  have  not  been  received  or  accepted  by  de- 
fendant. 

2097.  The  same,  as  to  quality. 

I.  That  it  was  a  part  of  the  agreement  referred  to  in  the 
complaint,  that  the  [furniture  therein  mentioned  should  be 
mprle  of  rosewood]. 

II,  That  the  said  [furniture]  was  not  [made  of  rosewood] 
but  .vas  made  of  [state  fact]. 

ill.  That,  therefore,  the  defendant,  on  the  ....  day  of 
,  19. .,  and  as  soon  as  he  discovered  the  defect,  re- 
turned the  same  to  the  plaintiff  [or  duly  tendered  the  same 
back  to  the  plaintiff,  and  has  ever  since  been  and  still  is, 
willing  to  return  them]. 

2098.  Breach  of  warranty  in  sale. 

I.  The  defendant  alleges  that  at  the  time  of  the  sale  of 
the  said  goods  [or  other  property,  describing  the  same],  de- 


^  For  defenses  which  are  common      on  sales,  see  first  chapters  under  the 
to  many  actions,  including  actions      head  of  "Answers." 


Chapter  CIV.]  1489  [Forms  2099-2101. 

scribed  in  the  complaint,  the  plaintiff  warranted  the  same  to 
be  [here  state  warranty,  as:  genuine  china  ware]. 

II.  That  the  said  goods  were  not  in  fact  genuine  china 
ware. 

III.  [As  in  last  preceding  form  if  defendant  has  refused 
to  accept;  if  goods  are  retained  by  defendant  and  damages  are 
sought  by  way  of  counter-claim^  see  complaints  for  breach  of 
warranty.] 

2099.  That  goods  did  not  correspond  to  contract. 

I.  The  defendant  alleges  that  it  was  agreed  as  part  of  the 
said  contract  of  sale  that  the  said  [describe  the  property  sold] 
should  be  [here  state  agreement,  as  for  example,  first  class 
potatoes  free  from  rot]. 

II.  That  when  the  said  potatoes  were  offered  by  the 
plaintiff  to  the  defendant  in  pretended  compliance  with  said 
contract,  the  defendant  examined  the  same  and  found,  as  the 
fact  was,  that  the  said  potatoes  were  not  first  class  potatoes, 
and  that  twenty  per  cent,  thereof  were  rotten  [or  otherwise 
describe  the  defect,  according  to  the  fact],  whereupon  the  de- 
fendant refused  to  receive  the  same,  and  notified  the  plaintiff 
of  such  refusal,  and  that  defendant  has  not  accepted  the 
same  or  any  part  thereof. 

2100.  That  goods  did  not  correspond  to  sample. 

I.  The  defendant  alleges  that  at  the  time  of  the  making  of 
the  said  contract  of  sale  mentioned  in  the  complaint,  the 
plaintiff  exhibited  to  the  defendant  a  sample  of  the  said 
goods  so  to  be  sold,  and  agreed  that  the  said  goods  would  and 
should  be  in  all  respects  equal  in  quality  to  the  said  sample. 

II.  That  when  the  said  goods  were  offered  by  the  plaintiff 
to  the  defendant  in  pretended  compliance  with  said  contract, 
the  defendant  found,  as  the  fact  was,  that  the  same  were  not 
equal  in  quality  to  the  said  sample  in  this  [here  state  nature 
of  defects],  whereupon  [state  refusal  to  receive,  and  non-ac- 
ceptance, as  in  last  preceding  form]. 

2101.  Denial  of  plaintiff's  performance. 

That  the  plaintiff  has  not  performed  the  conditions  of  said 
agreement  on  his  part;  but,  on  the  contrary,  has  wholly 
omitted  [here  state  breach,  as  if  in  a  complaint  against  him]. 
94 


Forms  2102-2106.]  1490  [Chapter  CIV. 

2102.  Another  form,  sale  of  real  property. 

I.  That  the  plaintiff,  by  said  agreement,  undertook  to 
convey  the  property  therein  mentioned  to  the  defendant  free 
from  all  incumbrances. 

Or:  I.  That  the  said  agreement  contained  a  stipulation, 
on  the  part  of  the  plaintiff,  of  which  the  following  is  a  copy 
[copy  of  provision  as  to  title]. 

II.  That  there  was  then,  and  still  is,  a  mortgage  on  the 

same,  in  the  sum  of dollars,  unsatisfied  of  record,  in 

book  . . . . ,  page  ....  of  Mortgages,  in  the  office  of  the 
register  of  deeds  of  the  county  of 

2103.  Abandonment  of  contract  by  plaintiff. 

That  on  the  ....  day  of ,  19 . .,  and  before  the  time 

for  the  defendant  to  perform  said  contract  on  his  part,  the 
plaintiff  gave  notice  in  writing  to  the  defendant  that  he  had 
determined  not  to  take  the  [land];  and  the  plaintiff  abandoned 
the  agreement,  and  ever  since  wholly  failed  to  perform  it. 

2104.  Excuse  for  deiendant's  non-performance. 

That  on ,  19. .,  before  the  time  fixed  in  said  agree- 
ment for  defendant  to  perform  his  part  thereof,  plaintiff 
notified  defendant  that  he  would  not  deliver  said  goods  to  de- 
fendant and  thereupon  defendant  abandoned  said  agree- 
ment. 

2105.  Payment. 

That  on ,  19 . .,  he  paid  to  plaintiff dol- 
lars in  full  payment  for  said  goods. 

2106.  Rescission  by  mutual  consent. 

That  on ,  19. .,  said  sale  was  rescinded  by  mutual 

agreement  of  plaintiff  and  defendant  and  thereupon  defend- 
ant returned  said  goods  to  plaintiff  and  plaintiff  received  the 
same  from  defendant  in  full  satisfaction  and  discharge  of  any 
and  all  claims  arising  out  of  the  transaction  alleged  in  the 
complaint. 


CHAPTER  CV. 

DEFENSES  IN  ACTIONS  ON  WARRANTIES. 
2107.  Denial  of  warranty.  |  2108.  Denial  of  breach. 

2107.  Denial  of  warranty. 

I.  The  defendant  denies  that  he  at  any  time  represented 
or  warranted  to  the  plaintiff  that  any  sum  whatever  was  due 
upon  said  note  [or,  that  said  horse  was  sound,  or  kind,  or 
true,  or  gentle,  or  quiet  in  harness],  as  alleged  [but  that  the 
plaintifT  purchased  said  ....  with  notice  [here  state  defect, 
if  any],  and  not  relying  on  any  representations  of  the  de- 
fendant]. 

2108.  Denial  of  breach. 

The  defendant  denies  that  at  the  time  of  the  said  sale  men- 
tioned in  the  complaint  the  said  horse  was  knee-sprung,  or 
[here  deny  breach  of  the  other  terms  of  the  warranty,  if  any,  in 
the  disjunctive]. 


CHAPTER  CVL 

DEFENSES  IN  ACTIONS  AGAINST  AGENTS, 
BAILEES,  CARRIERS  AND  TRUSTEES. 


2109.  Special     denial     of    agent's 

negligence  in  sale. 

2110.  Denial  of  agent's  negligence 

in  giving  credit. 

2111.  Denial  of  agent's  negligence 

in  services. 

2112.  Denial  of  bailment. 

2113.  That  bailment  is  held  as  a 

pledge. 

2114.  Denial  that  defendant  was  a 

common  carrier. 

2115.  Denial  of  employment. 


2116.  Denial  of  delivery  of  goods. 

2117.  Denial  of  loss. 

2118.  That  the  contract  was  spec- 

ial. 

2119.  That    the    damage    was    by 

plaintiff's  fault. 

2120.  That  the  goods  were  lost  by  a 

risk  for  which  defendants 
were  not  liable. 

2121.  That  the  value  of  the  goods 

lost  was  agreed  on. 

2122.  Denial  of  trust. 


2109.  Special  denial  of  agent's  negligence  in  sale. 

The  defendant  denies  that  he  was  in  any  respect  negligent 
in  or  about  the  selling  of  the  said  goods  in  the  complaint  de- 
scribed, and  alleges  that  he  sold  the  same  as  soon  [or  for  as 
large  a  price]  as  with  due  diligence  he  could. 

2110.  Denial  of  agent's  negligence  in  giving  credit. 

The  defendant  alleges  that  he  sold  said  goods  to  one  M . . . . 

N. . . .,  who  was  then  a  merchant  at in  good  standing 

and  credit,  for  the  sum  of dollars;  and  for  the  pay- 
ment of  which  sum  he  took  the  bill  of  the  said  M  . . . .  N . . . ., 
drawn  on  and  accepted  by  one  0....  P....,  payable  in^ 
....  months  after  date,  which  bill  w^as  at  the  time  held  and 
considered  an  approved  bill,  and  defendant  denies  that  he 
was  negligent  in  giving  such  credit  or  in  taking  said  bill,  and 
further  denies  that  said  M . . . .  N . . . .  was  then  embar- 
rassed or  insolvent,  or  that  defendant  knew  him  to  be  so. 

2111.  Denial  of  agent's  negligence  in  services. 

Defendant  denies  that  he  w^as  negligent  in  or  about  [the 
stowing  of  said  cargo],  but  used  due  care  and  diligence  there- 


Chapter  CVL]  1493  [Forms  2112-2116. 

in;  and  the  alleged  loss  [or  injury],  if  any,  accrued,  not 
through  the  fault  of  the  defendant,  but  [briefly  indicating 
the  cause]. 

2112.  Denial  of  bailment  (sustained  in  Beach  v.  Berdell, 

2  Duer,  327). 

I.  The  defendant  denies  that  said  [subject  of  bailment] 
was  the  property  of  said  [alleged  bailor],  or  that  it  was  de- 
posited with  the  defendant  by  him  or  his  agents. 

XL  That  the  same  was  the  property  of  one  M . . . .  N . . . ., 
to  whom  the  possession  of  it  belonged  when  this  action  was 
brought. 

III.  That  before  the  commencement  of  this  action  the 
defendant  had,  on  the  demand  of  said  M....  N....,  the 
true  owner,  delivered  the  same  to  him. 

2113.  That  bailment  is  held  as  a  pledge. 

I.     The  defendant  alleges  that  on  or  about  the  ....  day 

of ,  19. .,  the  defendant  loaned  to  the  plaintiff  the 

sum  of dollars,  which  loan  is  still  due  and  unpaid, 

and  that  the  said  [property  bailed],  was  thereafter  [or  at  the 
time  of  said  loan],  delivered  by  the  plaintiff  to  the  defendant 
as  security  for  the  repayment  of  said  loan,  and  is  still  held  by 
the  defendant  for  that  purpose. 

2114.  Denial  that  defendant  was  a  common  carrier. 

The  defendant  denies  that  he  is  or  was  at  the  time  men- 
tioned in  the  complaint,  a  common  carrier. 

2115.  Denial  of  employment. 

The  defendant  denies  that  he  ever  undertook  or  agreed  to 

safely  carry  the  said  goods  to or  to  deliver  them  there 

to ,  or  that  the  plaintiff  ever  paid  them  any  reward 

for  any  such  service,  or  ever  agreed  to  pay  any  such  reward. 

2116.  Denial  of  delivery  of  goods. 

The  defendant  denies  that  the  plaintiff  ever  delivered  to 
him  the  goods  mentioned  in  said  complaint,  or  that  he  re- 
ceived the  same. 


Forms  2117-2120.]  1494  [Chapter  GVI. 

2117.  Denial  of  loss. 

The  defendants  deny  that  the  said  goods  were  lost  to  said 
through  any  negligence  or  misbehavior  of  the  de- 
fendants, and  deny  that  they  have  any  knowledge  or  in- 
formation sufTicient  to  form  a  belief  whether  the  said  goods 
were  ever  lost  to  said 

2118.  That  the  contract  was  special. 

That  the  goods  mentioned  in  the  complaint  were  delivered 
by  the  plaintiffs  to,  and  received  by,  the  defendants,  upon  a 
special  contract  between  them,  whereby  it  was  provided  that 
[here  set  forth  matter  relied  oriy  with  averments  bringing  the 
goods  within  it]. 

2119.  That  the  damage  was  by  plaintiff's  fault  (sus- 

tainec  by  Hutchinson  v.  Guion,  28  L.  J.  (n.  s.) 
C.  B.  63). 

I.     The  defendant  alleges  that  the  goods  mentioned  in  the 

complaint,  called   ,  were  a  corrosive  and  destructive 

substance,  rotting  casks  and  cask-hoops,  and  other  sub- 
stances in  contact  with  it,  which  the  plaintiffs  knew,  but 
which  the  defendant  did  not  know,  and  could  not  reason- 
ably be  expected  to  know. 

XL  That  the  plaintiffs  did  not  inform  the  defendant  of 
the  destructive  nature  of  the  goods,  and  negligently  delivered 
the  same  to  the  defendant  in  bulk,  and  thereby  induced  the 
defendant  to  believe  that  the  same  might  be  placed  in  con- 
tact with  casks,  cask-hoops,  and  other  substances,  safely; 

and  they  in  consequence  stowed  the  same  among   , 

whereby  the  injury  complained  of  was  caused,  and  not  other- 
wise. 

2120.  That  the  goods  were  lost  by  a  risk  for  which  de- 

fendants were  not  liable  (sustained  by  Dorr  v. 
N.J.  S.N.  Co.,  UN.  Y.  485). 

I.  The  defendants  allege  that  the  merchandise  men- 
tioned in  the  complaint  was  delivered  by  the  plaintiffs  to  the 
defendants,  and  by  them  received  on  board  the  steamer 
Lexington,  under  and  in  pursuance  of  a  special  contract 
made  between  them  for  the  transportation  of  the  same  from 


Chapter  CVI.]  1495  [Forms  2121,  2122. 

New  York  to  Stonington,  of  which  the  following  is  a  copy 
[copy  of  the  contract], 

II.  That  while  the  merchandise  was  well  and  properly 
stowed  on  board  the  steamboat,  and  being  carried  pursuant 
to  the  contract,  and  without  any  carelessness  or  misconduct 
of  defendants  or  their  servants,  or  any  defect  of  the  boat  or  its 
equipments,  the  boat,  by  mere  casualty  and  accident,  took 
fire,  and  was  consumed,  with  its  cargo,  including  the  mer- 
chandize of  the  plaintiffs;  and  thereby,  by  accident  and 
casualty  of  fire,  and  not  by  any  negligence,  misconduct,  or 
default  of  the  defendants,  the  merchandise  was  not  de- 
ivered  at  Stonington,  and  became  lost  to  the  plaintiffs. 

2121.  That  the  value  of  the  goods  lost  was  agreed  on.* 

I.  The  defendant  alleges  that  at  the  time  of  the  delivery 
of  said  property  by  the  plaintiff  to  the  defendant  a  written 
contract  was  entered  into  between  the  parties,  by  which  it 
was  mutually  agreed,  as  a  part  of  the  contract  of  carriage, 

that  the  true  value  of  said  property  was   dollars 

[or,  did  not  exceed  the  sum  of dollars,  and  that  the 

hability  of  defendant  in  case  of  loss  or  injury  should  not  ex- 
ceed that  sum]  [or  set  forth  copy  of  the  contract]. 

II.  That  previous  to  the  commencement  of  this  action 
the  defendant  duly  tendered  to  the  plaintiff  the  said  sum 

of dollars,  but  that  plaintiff  refused  to  accept  the 

same,  and  the  defendant  has  kept  the  said  tender  good,  and 
now  brings  the  said  sum  into  court  for  the  use  of  the  said 
plaintiff,  and  in  continuance  of  said  tender. 

2122.  Denial  of  trnst. 

That  the  plaintiff  did  not  deliver,  and  the  defendant  did 
not  receive,  the  said  bond  and  mortgage,  upon  the  trust  and 
confidence  alleged;  but  the  defendant  received  the  same 
as  and  for  his  own  property,  absolutely,  and  without  any 
trust  thereto  attached. 

lAn  agreement,  fixing  the  value  damages  in  case  of  loss  is  invalid, 

of  the  property  at  or  not  exceed-  Ullman  v.  C.  &  N.  W.  Ry.  Co.,  112 

ing  a  certain  sum  is  valid,  but  an  Wis.  150;  88  N.  W.  41,  1103. 
arbitrary     stipulation     restricting 


CHAPTER  CVII. 


DEFENSES  IN  ACTIONS  AGAINST  SHERIFFS. 


2123.  Denial  of  plaintiff's  title. 

2124.  Denial  of  taking. 

2125.  Justification  of  taking  under 

writ  of  replevin. 

2126.  Justification  under  an  execu- 

tion against  a  third  person. 


2127.  Justification    under    attach- 

ment. 

2128.  Allegation  of  fraudulent  as- 

signment. 

2129.  Return   of   debtor   after   es- 

cape. 


2123.  Denial  of  plaintiff's  title.* 

The  defendant  denies  that  [he  has  any  knowledge  or  in- 
formation sufficient  to  form  a  belief]  that  at  the  time  alleged 
in  the  complaint,  or  at  any  other  time,  the  plaintiff  was  law- 
fully, or  otherwise,  possessed  of  the  goods  and  chattels  men- 
tioned and  described  in  the  complaint,  or  any  or  either  of 
them,  or  any  part  thereof;  or  that  the  said  goods,  and  chattels 
or  any  or  either  of  them,  or  any  part  thereof,  were  then,  or 
ever  since  have  been,  or  now  are,  the  property  of  the  plaintiff, 
or  that  the  same  were  or  are  of  the  value  of dol- 
lars, or  that  said  property  composed  the  stock  of  goods  in  the 
store  of  the  plaintiff  at  the  place  alleged  in  the  complaint,  or 
at  any  other  place. 

2124.  Denial  of  taking. 

The  defendant  denies  that  at  the  time  alleged  in  the  com- 
plaint, or  at  any  other  time  at  the  place  alleged  in  the  com- 
plaint, or  at  any  other  place,  the  defendant  wrongfully  took 
the  said  goods  and  chattels  from  .the  possession  of  the  plaintiff 
or  that  he  still  unjustly  detains  the  same,  to  the  damage  of 

the  plaintiff dollars,  or  any  other  sum,  or  that  by 

reason  of  the  taking  alleged  in  the  complaint,  or  of  any  act  or 
acts  of  the  defendant,  the  plaintiff  has  sustained  damage  to 
the  amount  of dollars,  or  any  damage  whatever. 


^  If  the  defendant  took  the  prop- 
erty from  the  plaintiff's  posses- 
sion it  will  be  necessary  to  plead 
title  in  a  third  person  under  whom 


he  shows  himself  entitled  to  hold 
the  same,  in  addition  to  a  denial  of 
plaintiff's  title. 


Chapter  CVIL]  1497  [Forms  2125,  2126. 

2125.  Justification  of  taking  under  writ  of  replevin, 

I.  The  defendant  alleges  that  at  the  time  mentioned  in 
the  complaint  the  defendant  was  the  sheriff  of  the  county  of 

in  this  state,  duly  elected  [or  appointedl  qualified  and 

acting  as  such. 

II.  That  in  an  action  brought  by  one  M N 

against  one  0 . . . .   P . . . .   in  the   ....   court  of   to 

recover  the  possession  [among  other  things]  of  the  property 
mentioned  in  the  complaint  in  this  action,  said  M . . ,  .  N . . . . 
delivered  to  this  defendant  a  duly  executed  affidavit  for  re- 
plevin, as  required  by  law,  made  by  him  [or  made  in  his  be- 
half] and  a  notice  indorsed  thereon,  describing  the  property 
mentioned  in  the  complaint,  and  requiring  this  defendant  to 
take  the  same  from  said  O....  P....,  and  deliver  it  to 
said  IVI . . . .  N . . . . ;  and  at  the  same  time  delivered  to  this 
defendant,  as  such  sheriff,  a  written  undertaking  as  required 
by  law  in  such  case,  of  which  affidavit,  notice,  and  under- 
taking copies  are  hereto  annexed  as  a  part  of  this  answer 
[or  otherwise  fully  and  accurately  describe  the  papers  made 
necessary  by  the  statute  of  the  particular  state  to  justify  a  seiz- 
ure of  the  property  in  an  action  of  replevin  or  an  action  for 
claim  and  delivery], 

III.  That  by  virtue  of  said  proceedings  the  defendant 
took  and  detained  the  goods  mentioned  in  the  complaint, 
which  are  the  acts  of  which  the  plaintiff  complains. 

2126.  Justification  under  an  execution  against  a  third 

person. 

And  for  a  further  and  separate  defense,  the  defendant 
denies  the  allegations  of  the  complaint  in  manner  and  form  as 
therein  alleged,  and  alleges: 

II.  That  heretofore,  in  an  action  in  the court  of 

,  wherein  IVI ....  N ... .  was  plaintiff  and  0 . . . .  P . . . . 

was  defendant,  judgment  was,  on  or  about  the  ....  day  of 

,  19 . .,  duly  rendered  in  favor  of  the  said  IVI ... . 

N....,  plaintiff  in  said  action,  against  the  said  0.... 
P. . . .  the  defendant  therein,  for  the  sum  of dol- 
lars, as  by  the  judgment-roll  in  said  action,  on  file  in  the 
office  of  the  clerk  of  said  court,  more  fully  appears. 

III.  That  afterwards,  and  upon  the  ....  day  of  ..... ., 

19. .,  a  transcript  of  the  said  judgment  was  duly  filed,  and 


Form  2127.J  1498  [Chapter  CVII. 

the  said  judgment  was  duly  docketed  in  the  office  of  the 

clerk  of  the  county  of and  afterwards,  upon  the  same 

day,  an  execution  against  the  property  of  0....  P...., 
based  upon  the  said  judgment,  was  issued  in  due  form  of 
law,  directed  to  and  delivered  to  this  defendant  as  sheriff 

of  the  said  city  and  county  of ,  for  service;  whereby, 

after  containing  the  statement  and  recital  of  the  matters  by 
law  required  to  be  stated  and  set  forth  in  such  case,  and  after 

setting  forth  that  the  sum  of dollars  was  then  actually 

due  on  the  said  judgment,  this  defendant  was  in  substance 
commanded  to  satisfy  the  said  judgment  out  of  the  personal 
property  of  the  said  judgment-debtor  within  this  defend- 
ant's county;  or  if  sufficient  personal  property  could  not  be 
found,  then  out  of  the  real  property  in  his  county  belong- 
ing to  such  judgment-debtor  on  the  day  when  the  said  judg- 
ment was  so  docketed  in  his  county,  or  at  any  time  there- 
after, in  whose  hands  soever  the  same  might  be,  and  to  re- 
turn the  said  execution  within  sixty  days  after  its  receipt  by 
him,  as  required  by  law  [or  otherwise  properly  set  forth  the 
contents  of  the  execution  or  other  writ,  according  to  the  statute 
of  the  particular  state]. 

IV.  That,  under  and  by  virtue  of  the  said  execution, 

this  defendant,  as  sheriff  of  the  county  of and  not 

otherwise,  by  one  of  his  general  deputies,  levied  upon  cer- 
tain goods  and  chattels  of  the  character  and  description  of 
those  mentioned  and  described  in  the  complaint,  and  took 
the  same  into  his  custody,  a  schedule  of  which  property  so 
levied  upon  and  taken  is  hereunto  annexed  as  a  part  of  this 
answer,  and  marked  "A,"  which  defendant  believes  to  be  a 
portion  of  the  goods  and  chattels  referred  to  in  the  com- 
plaint, and  that  the  said  levy  and  taking  and  detention  as 
aforesaid  constitute  the  supposed  wrongful  taking  in  the 
complaint  alleged. 

V.  But  this  defendant,  upon  his  information  and  belief, 
alleges  that  the  goods  levied  on  as  aforesaid  were  at  the  time 
of  said  levy  the  property  of  the  said  0 . . . .  P . . . .  or  the  said 
0 . . . .  P . . . .  had  an  interest  therein  liable  to  levy  and  sale 
under  execution. 

2127.    Justification  under  attstchment. 
I.     [As  in  last  preceding  form.] 


Chapter  CVIL]  1499  [Forms  2128, 2129. 

II.     The  defendant  alleges,  upon  information  and  belief, 

that  heretofore,  to-wit,  on  or  about  the  ....  day  of , 

19. .,  in  a  certain  action  theretofore  brought  in  the 

court  of county,  wherein  one  E. . . .  F. . . .  was  plain- 
tiff and  G . . . .  H . . . .  was  defendant,  a  warrant  of  attach- 
ment was  duly  and  regularly  issued  out  of  said  court  and 
directed  and  delivered  to  this  defendant,  commanding  and 
requiring  this  defendant  as  sheriff  aforesaid,  to  [here  set 
forth  commands  of  writ]  [or,  of  which  warrant  a  copy  is  at- 
tached hereto  marked  Exhibit  A,  and  made  part  hereof). 

Ill  and  IV.  [As  in  IV  and  V  of  last  preceding  form,  with 
necessary  incidental  changes.] 

2128.  Allegation  of  fraudulent  assignment. 

I.  [Allege  facts  showing  that  defendant  was  and  is  a  creditor 
of  the  assignor,  and  the  judgment  obtained,  if  any.] 

II.  That  the  plaintiffs  were  possessed  of  said  goods  under 
and  by  virtue  of  a  pretended  assignment  thereof  by  said 
[debtor]  to  them  for  the  benefit  of  his  creditors,  dated  on  or 
about  the  ....  day  of ,  19 .  . 

III.  That  the  same  was  executed  by  said  [debtor]  with  in- 
tent to  hinder,  delay  and  defraud  his  creditors,  and  that  no 
bond  was  executed  or  filed  by  the  said  plaintiffs  upon  re- 
ceipt of  said  assignment,  as  required  by  [name  the  statute] 
[or  otherwise  state  the  defects  in  the  assignment  according  to  the 
fact],  and  that  the  said  assignment  w^as  fraudulent  and  void 
as  against  this  defendant  and  other  creditors  of  said  [as- 
signor], 

2129.  Return  of  debtor  after  escape. 

I.  That  the  said  M .  .  . .  [the  prisoner]  wrongfully,  and 
without  the  privity  of  the  defendant,  escaped  from  his 
custody. 

II.  That  before  the  commencement  of  this  action,  to-wit, 

on  the day  of ,  19 . .,  the  said  M voluntarily 

returned  into  the  defendant's  custody  [or,  upon  fresh  pur- 
suit the  defendant  retook  said  M . . . .  into  his  custody], 
where  he  ever  since  has  remained  by  virtue  of  the  process 
mentioned  in  the  complaint. 


CHAPTER  CVm. 


DEFENSES  IN  ACTIONS  OF  DECEIT. 


2130.  Denial  of  sale  of  goods. 

2132.  Admission  of  certain  repre- 

2131. Denial     of     representations 

sentations   and   denial   of 

alleged. 

their  falsity. 

2130.  Denial  of  sale  of  goods. 

The  defendant  denies  that  he  at  any  time  sold  the  [de- 
scribe property]  to  the  plaintiff  as  alleged  in  the  said  com- 
plaint, 

2131.  Denial  of  representations  alleged. 

The  defendant  denies  that  he  at  any  time  made  any  of  the 
representations  to  the  plaintiff  alleged  in  the  complaint. 

2132.  Admission  of  certain  representations  and  denial 

of  their  falsity. 

The  defendant  admits  that  he  stated  and  represented  to 
the  plaintiff  that  [here  state  representatives  admitted]  and  al- 
leges that  the  said  representations  so  made  were  in  fact  true, 
and  the  defendant  denies  that  he  at  any  time  made  any  other 
or  different  representations  than  those  herein  admitted. 


CHAPTER  CIX. 

DEFENSES  IN  ACTIONS  FOR  NEGLIGENT 
INJURIES. 


2133.  Denying  injury  and  defend- 

ant's negligence. 

2134.  Admitting  the  fact  of  injury 

but  denying  defendant's 
negligence. 

2135.  Another   form,    alleging   de- 

fendant's due  care  and 
plaintiff's  contributory 
negligence. 

2136.  Collision    in   highway;    alle- 


gation of  plaintifl's  negli- 
gence. 

2137.  Negligence  of  a  fellow  ser- 

vant. 

2138.  Contract  relieving  defendant 

from  liability  for  ordinary 
negligence. 

2139.  Denial  of  ownership  or  con- 

trol of  place  or  instrument 
of  injury. 

2140.  Contributory  negligence. 


2133.  Denying  injury  and  defendant's  negligence. 

The  defendant  denies  that  he  has  any  knowledge  or  in- 
formation sufTicient  to  form  a  belief  that  plaintiff  was  in- 
jured, as  alleged  in  said  complaint,  and  denies  *  that  either 
this  defendant  or  his  servants  were  in  any  respect  negligent 
in  the  construction  or  operation  of  said  machine  [or  otherwise 
negative  the  particular  negligence  charged],  or  that  the  plain- 
tiff's said  injury,  if  any  was  in  fact  received  by  him,  was 
caused  or  contributed  to  by  any  negligence  on  the  part  of 
the  defendant  or  his  servants. 

2134.  Admitting  the  fact  of  injury,  but  denying  de- 

fendant's negligence. 

The  defendant  admits  that  the  plaintiff  was  injured  at  the 
time  and  place  in  said  complaint  alleged,  but  defendant 
denies  that  he  has  any  knowledge  or  information  sufficient  to 
form  a  belief  as  to  whether  said  injury  was  in  any  respect 
serious  or  resulted  in  a  broken  leg  [or  otherwise,  according  to 
allegations  of  the  complaint],  as  alleged  in  the  complaint; 
and  defendant  denies  [proceed  as  in  last  preceding  form  after 
the  *]. 


Forms  2135-2137  1502  [Chapter  CIX. 

2135.  Another  form,  alleging  defendant's  due  care  and 

plaintiff's  contributory  negligence.^ 

[After  denying  or  admitting  the  injury,  as  in  either  of  two 
preceding  forms,  proceed] :  and  defendant  alleges  that  the  de- 
fendant and  his  servants  used  due  care  and  diligence  [about 
the  construction  of  the  said  building,  or,  in  repairing  said 
street,  and  replacing  the  pavement  thereof,  or,  in  guarding 
the  said  excavation  with  proper  bulwarks,  and  in  putting  up 
lights  during  the  night-time,  or  otherwise  according  to  the 
allegations  in  the  complaint]  and  that  said  injury,  if  any  was  in 
fact  received,  was  not  caused  by  any  negligence  on  the  part 
of  the  defendant  or  his  servants,  but  was  caused  [or,  directly 
contributed  to]  by  the  negligence  and  want  of  ordinary  care 
on  the  part  of  the  plaintifl. 

2136.  Collision   in   highway,   allegation   of   plaintiff's 

negligence. 

That  at  the  time  mentioned  in  the  complaint  the  defendant 
was  driving  his  said  gig  in  the  highway,  and  the  horse  of  the 
plaintiff,  being  at  the  same  time  there,  was  so  carelessly, 
negligently,  and  improperly  managed  by  the  plaintiff,  that 
by  reason  thereof  the  gig  of  the  defendant,  without  any  fault 
on  the  part  of  the  defendant,  and  by  want  of  due  care  in  the 
management  of  his  horse  by  the  plaintiff,  was  driven  against 
said  horse,  and  thereby  said  horse  sustained  the  injury  al- 
leged; and  that  if  any  damage  happened  to  said  horse,  it  v/as 
caused  by  the  plaintiff's  said  negligence,  and  not  by  the 
fault  of  the  defendant. 

2137.  Negligence  of  a  fellow  servant. 

The  defendant,  further  answering,  alleges  that  the  in- 
juries received  by  the  plaintiff  [if  any  were  in  fact  received] 
were  caused  solely  by  the  negligence  and  want  of  ordinary 
care  of  one  C . . . .  D . . . .,  who  was  then  a  fellow-servant  of  the 
said  plaintiff  in  the  employ  of  the  defendant,  and  not  other- 
wise. 

1  Contributory  negligence  is  gen-  the  complaint,  in  which  case  a  de- 

erally  held  to  be  an  affirmative  de-  nial  of  the  allegations  of  the  com- 

fense,  and  should  be  alleged  in  the  plaint  will  sufTice. 
answer  unless   it  is   negatived   by 


Chapter  CIX.]  1503  [Forms  2138-2140. 

2138.  Contract  relieving  defendant  from  liability  for  or- 

dinary negligence. 

I.  The  defendant  alleges  that  prior  to  the  happening  of 
the  said  accident  set  forth  in  the  complaint,  and  as  part  of  the 
contract  of  employment  entered  into  between  the  plaintiff 
and  defendant,  the  said  plaintiff  entered  into  a  written  con- 
tract of  which  a  copy  is  hereto  annexed  and  made  part  hereof, 
marked  Exhibit  A,  and  that  said  contract  was  in  full  force 
and  effect  at  the  time  of  the  said  accident. 

II.  That  the  said  accident,  and  resulting  injuries  to  the 
plaintiff,  were  in  fact  caused  by  [hei-e  set  forth  cause  of  acci- 
dent, bringing  it  within  the  causes  for  which  the  agreement 
exempts  the  defendant  from  liability].^ 

2139.  Denial  of  ownership  or  control  of  place  or  instru- 

ment of  injury. 

The  defendant  denies  that  at  the  time  of  the  injuries  al- 
leged in  the  complaint  the  defendant  was  the  owner  or  had 
possession  or  control  of  the  premises  in  which  the  said  hole  or 
hatchway  was  [or,  of  the  said  wagon  which  caused  the  said 
injury,  or  otherwise  describe  the  instrument  of  injury  accord- 
ing to  the  fact]. 

2140.  Contributory  negligence. 

That  the  said  accident  was  proximately  caused  and  con- 
tributed to  by  the  negligence  and  want  of  ordinary  care  of  the 
plaintiff,  in  this  that  he  [state  the  negligent  act  or  acts  of  the 
plaintiff  as  for  example,  that  he  drove,  or  stepped  upon 
the  defendants'  railway  track  at  the  place  of  said  accident 
without  either  looking  or  listening  at  a  reasonable  distance 
therefrom  for  approaching  trains  and  that  had  he  looked  at  a 
distance  of  fifty  feet  from  said  track  he  could  have  seen  the 
defendants'  train  for  a  distance  of  half  a  mile]. 

2  See  on  this  subject,  Peterson  v.  C.  &  N.  W.  Ry.  Co.,  119  Wis.  197; 
06  N.  W.  532. 


CHAPTER  ex. 

DEFENSES  IN  ACTIONS  FOR  CONVERSION  OR  IN- 
JURIES TO  PERSONAL  PROPERTY. 


2141.  Denial  of  plaintiff's  owner- 

ship. 

2142.  Denial  of  the  bailment.. 

2143.  Denial  of  conversion. 

2144.  Denial  of  detention. 

2145.  That  defendant  has  a  lien  on 

the  goods  by  a  pledge. 

2146.  That  defendant  has  a  lien  for 

labor. 


2147.  Attorney's  lien  for  services. 

2148.  Denial  of  assignment  of  cause 

of  action  for  conversion. 

2149.  That  the  goods  were  seized 

under  an  attachment,  and 
that  the  plaintiff  is  a 
fraudulent  grantee. 

2150.  Killing  dog  worrying  sheep. 

("Wisconsin.) 


2141.  Denial  of  plaintiff's  ownership. 

The  defendant  denies  that  at  the  time  of  the  alleged  con- 
version the  plaintiff  was  the  owner,  or  entitled  to  the  pos- 
session, immediate  or  otherwise,  of  the  goods  mentioned  in 
the  complaint. 

2142.  Denial  of  the  bailment. 

The  defendant  denies  that  he  ever  received  the  plaintiff's 
goods  mentioned  in  the  complaint,  as  alleged  therein. 

2143.  Denial  of  conversion. 

The  defendant  denies  that  he  at  any  time  took  or  converted 
to  his  own  use  the  said  property  described  in  the  complaint, 
or  ever  refused  to  deliver  the  same  to  the  plaintiff. 

2144.  Denial  of  detention. 

The  defendant  denies  that  he  now  does  or  at  any  time  did 
detain  the  said  goods  [or  deeds],  or  any  or  either  of  them, 
from  the  plaintiff,  as  alleged  in  said  complaint. 

2145.  That  defendant  has  a  lien  on  the  goods  by  a 

pledge. 

The  defendant  alleges  that  at  the  time  he  received  said 
goods,  on  or  about ,  19. .,  it  was  agreed  between  the 


Chapter  CX.]  1505  [Forms  2146,  2147. 

plaintiff  and  the  defendant,  in  consideration  of  the  de- 
fendant's advancing  to  the  plaintiff dollars,  that 

the  defendant  should  have  a  lien  on  the  said  goods  and  deeds 
until  repayment  thereof,  with  interest;  that  the  defendant 

advanced  to  the  plaintiff dollars,  but  the  plaintiff 

has  not  repaid  the  same,  with  interest  [or,  has  only  repaid 

the  sum  of dollars  of  said  loan],  leaving 

dollars,  with  interest  from ,  19. .,  still  owing  thereon. 

Wherefore  the  defendant  detained  [and  still  detains]  the  said 
goods  and  deeds. 

2146.  That  defendant  has  a  lien  for  labor. 

The  defendant  alleges  that  said  wagon  was  delivered  by 
the  plaintiff  to  the  defendant,  who  is  and  was  a  wagon  maker, 

on  or  about  the  ....  day  of ,  19 . .,  for  the  purpose  of 

being  repaired,  and  was  in  fact  repaired  by  the  defendant, 
and  that  the  reasonable  value  of  said  repairs  was  the  sum  of 

dollars,  no  part  of  which  sum  has  been  paid  by  the 

plaintiff,  though  often  demanded,  and  that  the  defendant 
now  holds  and  detains  said  wagon  by  virtue  of  his  lien  there- 
on for  the  amount  of  said  repairs,  and  not  otherwise. 

2147.  Attorney's  lien  for  services. 

I.  The  defendant  alleges  that  he  is  and  was  at  all  times 
hereinafter  mentioned  an  attorney  at  law,  duly  admitted  and 

practicing  as  such  at   and  that  the  plaintiff  on  or 

about  the  ....  day  of ,  19 . .,  retained  the  defendant 

as  such  attorney  to  prosecute  a  certain  action  against  one 
E F. . . .  [or  otherwise  state  the  character  of  the  business]. 

II.  That  at  the  time  of  such  retainer,  and  in  pursuance 
thereof,  the  plaintiff  deposited  with  the  defendant,  as  such 
attorney,  the  said  deeds  [or  other  papers]  mentioned  in  the 
complaint,  and  that  thereafter  the  defendant  performed  legal 
services  in  the  prosecution  of  said  action  for  the  plaintiff, 

which  were  reasonably  worth  the  sum  of dollars, 

and  necessarily  advanced  and  expended  for  traveling  ex- 
penses, officers'  fees  and  other  necessary  expenses,  at  plain- 
tiff's request,  the  sum  of dollars,  no  part  of  which 

sums  have  been  paid  to  the  defendant  [except  the  sum  of 
dollars],  though  often  demanded. 

95 


Forms  2148,  2149.]  1506  [Chapter  CX. 

III.  That  defendant  now  holds  and  retains  said  papers 
by  virtue  of  his  Hen  thereon  for  the  said  services  and  dis- 
bursements, amounting  to dollars,  and  not  other- 
wise. 

2148.  Denial  of  assignment  of  cause  of  action  for  con- 

version. 

The  defendant  denies  that  [he  has  any  knowledge  or  in- 
formation sufficient  to  form  a  belief  that]  the  said  M .... 
N . . . .  and  O . . . .  P . . . .  ever  assigned  to  the  plaintiff  their 
right,  title  and  interest  in  and  to  the  [trunk,  and  the  con- 
tents thereof]  mentioned  in  the  complaint;  or  in  and  to  any 
claims,  demands,  or  causes  of  action  arising  to  said  M . . . . 
N .  . . .  and  0 . . . .  P .  .  . . ,  or  either  of  them,  for  the  alleged 
detention  or  loss  of  said  [trunk  and  contents]. 

2149.  That  the  goods  were  seized  under  an  attachment, 

and  that  the  plaintiff  is  a  fraudulent  grantee. 

I.  That  one  M . . . .  N . . . . ,  on  the  ....  day  of , 

19. .,  was  indebted  to  the  defendant  in  the  sum  of 

dollars,  over  and  above  all  legal  set-offs,  and  departed  out 
of  the  state,  or  kept  concealed  within  it,  with  intent  to 
defraud  his  creditors  of  their  just  demands,  or  to  avoid 
being  arrested  by  the  ordinary  process  of  law  [or  otherwise, 
according  to  the  statute  of  the  particular  state]. 

II.  That  the  defendant  applied  [stating  the  proceedings  to 
obtain  an  attachment  against  M . . . .  N .  .  .  .,  pursuant  to  the 
law  of  the  state]  that  a  warrant  of  attachment  was  duly  issued 
by  the  said  judge  to  the  sherifT  of  the  county  of com- 
manding him  to  attach  all  the  property  of  the  said  M . . . . 
N . . . . ,  which  warrant  was  delivered  to  one  0....  P....,  a 
deputy  sherifT  of  said  county,  to  be  executed  in  due  form  of 
law. 

III.  That  the  plaintiff,  on  the day  of ,  19 . ., 

was  possessed  of  the  said  nine  horses,  by  virtue  of  a  con- 
veyance thereof,  made  to  him  by  the  said  M , .  . .  N . . . . , 
with  the  intent  to  defraud  the  creditors  of  the  said  M . . . . 
N. ,  .  .  of  their  just  debts  [here  state  facts  showing  fraudulent 
intent]. 

IV.  That  the  deputy  sherifT,  by  virtue  of  the  said  warrant, 
and  the  defendant,  in  aid  and  by  the  command  of  the  said 


Chapter  CX.]  1507  [Form  2150. 

deputy  sheriff,  did  attach,  and  for  the  space  of  two  days  did 
safely  keep,  the  said  horses  as  and  for  the  proper  goods  and 

chattels  of  the  said  M . . . .  N which  is  the  same  trespass 

complained  of  by  the  plaintiff. 

2150.    Killing  dog  worrying  sheep  (Wis.  Stats.  1913  sec. 
1621). 

The  defendant  alleges  that  on  the  ....  day  of » 19  • ., 

and  before  the  committing  of  the  said  trespasses  in  said  com- 
plaint mentioned,  the  said  dog  of  the  said  plaintiff  was  found, 
by  this  defendant,  worrying,  wounding  and  killing  the  sheep 
of  him,  the  said  defendant  [or,  the  sheep  of  one  M . . . . 
N. . . .];  and  thereupon  the  said  defendant,  on  the  ....  day 

of ,  19. .,  duly  notified  the  said  plaintiff  of  the  said 

worrying,  wounding  and  killing  of  said  sheep  by  said  dog. 

That  thereafter  and  on  the  ....  day  of ,  19. .,  and 

more  than  twenty-four  hours  after  the  giving  of  said  notice, 
the  defendant  found  the  said  dog  out  of  the  plaintiff's  en- 
closure and  out  of  the  immediate  care  of  the  said  plaintiff, 
his  owner  and  keeper,  and  thereupon  killed  the  said  dog,  as 
he  lawfully  might. 


CHAPTER  CXI. 


DEFENSES  IN  ACTIONS  OF  REPLEVIN. 


2151.  General  denial. 

2152.  Defendant  part  owner. 

2153.  Title  in   defendant  or  in 

stranger. 

2154.  Lien  for  storage  or  freight. 


2155.  Lien  for  services. 

2156.  By  sheriff,  justifying  under 

an  attachment. 

2157.  That  the  property  was  dis- 

trained, doing  damage. 


2151.    General  denial.^ 

The  defendant,  answering  the  complaint  of  the  plaintiff 
herein,  denies  each  and  every  allegation  in  said  complaint 
contained. 


2152.  Defendant  part  owner. 

That  at  the  several  times  mentioned  in  the  said  complaint, 
one  undivided  half  of  the  said  goods  and  chattels  was,  and 
still  is,  the  property  of  this  defendant,  and  not  of  the  plaintifT; 
and  the  whole  of  said  goods  and  chattels  then  were  rightfully 
in  the  possession  of  this  defendant. 

2153.  Title  in  defendant  or  in  a  stranger. 

That  the  goods  mentioned  in  the  complaint  were  the 
property  of  the  defendant  [or,  the  property  of  one  M . . . . 
N. . . .],  at  the  time  mentioned  in  the  complaint,  and  not  the 
property  of  the  plaintiff  [and  that  the  defendant  took  and 
retains  possession  of  the  said  property  by  authority  and 
direction  of  the  said  M . . . .  N . . . .  ] 

2154.  Lien  for  storage  or  freight. 

I.  That  on  the  ....  day  of ,  19 .  .,  the  plaintiff  de- 
posited the  goods  mentioned  in  the  complaint  with  the 


*  A  general  denial  in  replevin 
puts  in  issue  all  the  facts  and 
under  it  the  defendant  may  show 
title  in  himself  or  a  stranger,  or 
that  defendant  never  had  posses- 
sion or  any  other  fact  which  de- 
feats  plaintiff's   title    or    right    of 


possession.  Timp  v.  Dockham,  32 
Wis.  146.  It  is  believed  to  be  ad- 
visable, however,  to  specially  plead 
such  facts,  and  necessary  to  do  so 
where  the  goods  were  taken  by  the 
defendant  from  plaintiff's  posses- 
sion. 


Chapter  CXL]  1509  [Forms  2155,  2156. 

defendant,  who  was  then  and  still  is  a  warehouseman,  for 
storage  [or,  delivered  the  goods  mentioned  in  the  complaint 
to  the  defendant,  who  was  then  and  still  is  a  common  carrier 

for  hire,  to  be  carried  to   ],  agreeing  to  pay  for  the 

same cents  per  ton  [per  month]. 

II.  That  the  defendant  duly  performed  all  the  conditions 
of  the  contract  on  his  part,  and  has  always  been,  and  still  is, 
ready  and  willing  to  deliver  the  said  goods  to  the  plaintiff 
upon  payment  of  the  money  due  for  storage  [or  freight], 
to-wit,  the  sum  of dollars. 

III.  That  the  plaintifT  has  not  paid  or  tendered  the  same; 
wherefore,  the  defendant  detained  [and  still  detains]  said 
goods,  as  he  lawfully  might  do. 

2155.  Lien  for  services. 

I.  That  said  goods  were  manufactured  by  the  defendant, 
as  a  carpenter  and  joiner;  and  that  he  detained  them  by 
virtue  of  his  lien  as  a  mechanic,  and  the  manufacturer  thereof, 

as  security  for  the  payment  of dollars,  the  money  due 

him  from  the  plaintiff  for  work  and  labor  in  manufacturing 
them. 

II.  That  said  sum  is  still  due  from  the  plaintifT  therefor, 
and  unpaid;  wherefore,  the  defendant  detained  [and  still 
detains]  said  goods,  as  he  lawfully  might  do. 

2156.  By  sheriff,  justifying  under  an  attachment. 

I.  Denies  that  he  wrongfully  detains  from  the  plaintifTs 
the  four  cases  and  two  casks  containing  the  goods  and 
chattels  mentioned  and  described  in  the  complaint,  or  any  or 
either  of  them,  or  any  part  thereof;  and  he  has  no  knowledge 
or  information  sufficient  to  form  a  belief,  that  the  said  goods 
and  chattels,  or  any,  or  any  part  thereof,  were  or  are  the 
property  of  the  plaintiffs,  or  that  the  same  were  or  are  of 

the  value  of dollars,  or  that  by  reason  of  the  detention 

alleged  in  the  complaint,  or  of  any  act  of  the  defendant,  the 
plaintifT  has  sustained  any  damage. 

II.  And  further  answering,  this  defendant,  upon  his  infor- 
mation and  belief,  avers  that  on  the  ....  day  of ,  19 . ., 

M N . . . . ,  was  indebted  to  0 ....  P ....  in  a  cause  of  ac- 
tion arising  upon  contract,  in  the  sum  of dollars,  with 

interest  thereon  from  the day  of ,  19 . .,  and  on  or 


Form  2156.]  1510  [Chapter  CXI. 

about  the  said  ....  day  of ,  19 . .,  the  said  0 . . . . 

P . . . .  commenced  an  action  in  the court  of  the  state 

of against  the  said  M . . . .  N . . . .  for  the  recovery  of 

the  said  money  and  interest,  and  issued  to  this  defendant  a 
summons  in  due  form  for  service;  and  on  the  same  day  made 
application  to  J ... .  K . . . .,  one  of  the  justices  of  said  court, 
for  a  warrant  of  attachment  against  the  property  of  the 
said  M . .  . .  N. . . .,  and  presented  to  the  said  justice,  on  the 
said  application,  an  affidavit  or  affidavits,  whereby  it  ap- 
peared that  a  cause  of  action  existed  against  the  said  M . . . . 
N . . . . ,  specifying  the  amount  of  the  said  claim,  and  the 
grounds  thereof;  and  that  the  defendant  was  not  a  resident 

of  the  state  of but  resided  at in  the  state  of 

and  that  a  summons  had  been  issued  to  the  sheriff  of 

the  city  and  county  of ;  and  at  the  same  time  pre- 
sented to  the  said  justice  an  undertaking  as  required  by  law, 
with  sufficient  surety,  to  the  effect  that  if  said  defendant  in 
said  action  recovered  judgment,  the  plaintiff  therein  would 
pay  all  costs  that  might  be  awarded  to  the  said  defendant, 
and  all  damages  which  he  might  sustain  by  reason  of  such 
attachment,  not  exceeding  the  amount  specified  in  such 
undertaking,  and  the  amount  specified  in  such  undertaking 
was  at  least  the  sum  of  two  hundred  and  fifty  dollars  [or 
otherwise  set  forth  the  attachment  proceedings,  according  to  the 
laws  of  the  state]. 

III.  That  thereupon  the  said  justice  issued  a  warrant  of 
attachment  against  the  property  of  the  said  M . . . .  N . . . . 
directed  to  this  defendant,  as  sheriff  of  the  city  and  county 

of ,  and  required  and  commanded  him  to  attach  and 

safely  keep  all  the  property  of  the  said  M .  .  .  .  N . . . .,  within 
his  county,  or  so  much  thereof  as  might  be  sufficient  to  satisfy 
the  demand  of  the  plaintiff  in  said  warrant  of  attachment,  of 
$....,  with  interest  thereon  as  aforesaid,  being  the  amount 
of  indebtedness  stated  in  such  attachment,  together  with  all 
costs  and  expenses,  and  that  this  defendant  proceed  thereon 
in  the  manner  required  by  law. 

IV.  That  the  said  warrant  of  attachment  was  delivered  to 
and  received  by  him  as  such  sheriff  as  aforesaid,  for  service  on 

the  ....  day  of ,  19 . . ;  and  under  and  by  virtue  of  said 

warrant  of  attachment,  he  forthwith  levied  upon  and 
attached  four  cases  and  two  casks  of  the  character  and 
description  of  those  mentioned  and  described  in  the  com- 


Chapter  CXI.]  1511  [Form  2157. 

plaint,  and  took  the  same  in  his  custody,  which  the  defendant 
believes  to  be  the  goods  and  chattels  referred  to  in  the 
complaint,  and  that  the  said  attaching  and  taking  as  afore- 
said constitute  the  supposed  wrongful  detention  in  the 
complaint  alleged. 

V.  This  defendant,  upon  his  information  and  belief,  avers 
that  the  said  goods  and  chattels  so  attached  and  taken  as 
aforesaid  were,  at  the  time  of  said  attaching  and  taking,  the 

property  of  the  said  M N or  that  the  said  M .  .  .  . 

N . . . .  had  a  leviable  or  attachable  interest  therein,  or  that 
said  goods  and  chattels  were  liable  to  be  levied  upon,  and 
taken  under  and  by  virtue  of  said  attachment. 

2157.    That  the  property  was  distrained,  doing  damage.^ 

I.  That  at  the  times  mentioned  in  the  complaint,  this  de- 
fendant [or,  one  M N ]  was  lawfully  possessed  of  the 

real  property  upon  which  the  [cattle]  therein  mentioned  were 

taken,  to-wit,  a  certain  meadow,  called [or  otherwise 

identify  it]  situate  at 

II.  That  the  [cattle]  alleged  in  the  complaint  to  have  been 
taken  and  carried  away  by  this  defendant  were,  at  the  time 
therein  stated,  wrongfully  upon  said  premises  of  the  defend- 
ant [or  of  said  M . . . .  N . . . .  ]  and  then  incumbering  the  same 
and  doing  damage  thereon. 

III.  That  [acting  by  command  of  said  M....   N ] 

this  defendant  then  and  there  took  said  property,  and 
removed  and  carried  the  same  away  to  a  convenient  distance, 
doing  no  unnecessary  damage  thereto,  and  there  left  the 
same  for  the  use  of  the  plaintiff. 

IV.  That  these  acts  are  the  same  of  which  the  plaintiff 
complains. 

^  It  is  sufficient  in  Wisconsin  to  upon  which  the  distress  was  made, 

allege  that  the  defendant  or  person  and  that  the  cattle  were  at  the  time 

by  whose  command  he  acted  was  doing  damage  thereon.    "Wis.  Stats. 

lawfully  possessed  of  the  real  estate  1913  sec.  2679. 


CHAPTER  CXII. 

DEFENSES  IN  ACTIONS  FOR  ASSAULT  AND 
BATTERY. 


2158.  Specific  denial  of  battery. 

2159.  To  preserve  the  peace. 

2160.  Plaintiff  the   aggressor    (son 

assault  demesne). 

2161.  The  same,  a  shorter  form. 

2162.  To  preserve  the  peace. 

2163.  Defense  of  possession  of  his 

dwelling. 

2164.  The  same,  of  an  inn. 


2165.  The  same,  resistance  of  entry. 

2166.  Justification     of     removing 

plaintiff  from  railroad  car 
for  non-payment  of  fare. 

2167.  Defense     of     possession     of 

goods. 

2168.  Moderate   correction   of   an 

apprentice. 


2158.  Specific  denial  of  battery. 

The  defendant  denies  that  he  at  any  time  struck,  wounded 
or  assaulted  plaintiff,  as  in  said  complaint  alleged. 

2159.  To  preserve  the  peace. 

I.  [Deny  allegations  of  the  complaint  as  to  beating  and 
wounding.] 

II.  The  defendant  further  alleges  that  at  the  time  men- 
tioned in  the  complaint  the  plaintiff  had  made  an  assault  on 
one  M . . . .  and  was  then  and  there  beating  him  [or,  the 
plaintiff  and  one  M . . . .  in  breach  of  the  peace,  were  fight- 
ing together]. 

III.  That  thereupon  the  defendant,  in  order  to  preserve 
the  peace  and  prevent  the  plaintiff  from  further  so  doing 
[or,  in  order  to  preserve  the  peace  and  to  separate  them], 
gently  laid  his  hands  upon  the  plaintiff,  as  he  lawfully  might. 

IV.  That  thereupon  the  plaintiff  [here  may  allege  assault 
upon  this  defendant,  and  his  self-defense,  as  in  next  following 
form]. 

V.  That  the  acts  above  mentioned  are  the  same  of  which 
the  plaintiff  complains. 

2160.  Plaintiff  the  aggressor  (son  assault  demesne). 

I.  That  at  the  time  mentioned  in  the  complaint,  and  just 
before  the  time  of  the  commission  of  the  alleged  grievances 


Chapter  GXIL]  1513  [Forms  2161-2163. 

therein  stated,  the  plaintiff  made  an  assault  [state  it  as  if  in  a 
complaint  against  him]  upon  this  defendant,  and  would  have 
beaten  and  greatly  bruised  [or  otherwise  injured]  him,  if  he 
had  not  immediately  defended  himself;  wherefore  he  did  de- 
fend himself,  as  he  lawfully  might,  and  in  so  doing  did  neces- 
sarily and  unavoidably  a  little  beat  and  bruise  [or  otherwise 
injure]  the  plaintiff;  and  that  if  the  plaintiff  sustained  any 
damage,  it  was  occasioned  by  his  first  assaulting  the  de- 
fendant. 

II.  That  the  acts  above  mentioned  are  the  same  of  which 
the  plaintiff  complains. 

III.  This  defendant  denies  each  and  every  allegation  of 
the  complaint,  except  such  as  are  hereinbefore  admitted. 

2161.  The  same,  a  shorter  form. 

That  the  plaintiff  first  assaulted  and  beat  the  defendant, 
who  thereupon  necessarily  committed  the  acts  complained 
of  in  self-defense. 

2162.  To  preserve  the  peace. 

I.  That  as  to  the  alleged  assaulting,  beating,  and  iil- 
treating  the  plaintiff,  the  defendant  was,  at  the  time  thereof, 
captain  of  the  ship  [or  vessel,  or,  steamboat]  called  the  .... 

II.  That  the  plaintiff  was  then  on  board  of  said  ship  [or 
vessel,  etc.]  making  a  great  noise  and  disturbance,  and  fight- 
ing with  a  certain  other  person,  to-wit,  one  M . . . .  N . . . . , 
whom  he  was  striving  to  beat  and  wound. 

III.  Wherefore  the  defendant,  for  the  preservation  of  the 
peace,  and  to  preserve  due  order  on  said  ship  [or  vessel, 
etc.],  and  to  separate  the  said  plaintiff  and  said  other  person 
so  fighting  together,  and  to  prevent  the  said  plaintiff  from 
beating,  wounding,  and  ill-treating  such  other  person,  as  he 
would  otherwise  have  done,  then,  as  such  captain,  gently  laid 
his  hands  upon  the  plaintiff,  as  he  lawfully  might,  for  the 
cause  aforesaid;  which  are  the  acts  of  which  the  plaintiff 
complains. 

2163.  Defense  of  possession  of  his  dwelling. 

I.  [Deny  beating  and  wounding.] 

II.  The  defendant  further  says,  that  at  the  time  men- 


Forms  2164,  2165.]  1514  [Chapter  CXII. 

tioned  in  the  complaint  the  defendant  was  lawfully  possessed 
of  [here  designate  the  dwelling]. 

III.  That  the  defendant  being  so  possessed  thereof,  the 
plaintiff  was  unlawfully  therein,  and  making  great  noise  and 
disturbance  therein,  against  the  will  of  the  defendant,  and 
disturbing  him  and  his  family  in  the  enjoyment  of  their 
dwelling;  and  refused  to  cease  such  noise  and  disturbance, 
and  to  go  away,  although  requested  by  the  defendant. 

IV.  That  thereupon  the  defendant,  in  defense  of  the  pos- 
session of  his  dwelling,  gently  laid  his  hands  upon  the  plaintiff 
in  order  to  remove  him,  as  he  lawfully  might. 

V.  That  the  acts  above  mentioned  are  the  same  of  which 
the  plaintiff  complains. 

2164.  The  same,  of  an  inn. 

I.  [Deny  beating  and  wounding.] 

II.  That  at  the  time  mentioned  in  the  complaint  the  de- 
fendant was  lawfully  possessed  of  a  certain  public  house 
[designate  it]. 

'III.  That  the  plaintiff  came  into  the  said  house,  and  then 
and  there  made  a  great  noise  and  disturbance  therein,  to  the 
disquiet  of  other  persons  lawfully  there,  and  of  the  defendant 
and  his  family,  in  their  enjoyment  therein,  and  refused  to  de- 
part therefrom  or  cease  said  disturbance,  though  requested 
by  the  defendant  so  to  do. 

IV.     [Continue  as  in  preceding  form.] 

2165.  The  same,  resistance  of  entry. 

I  and  II.     [As  in  preceding  forms.] 

III.  That  the  plaintiff  then  and  there,  with  force  and 
violence,  attempted  to  break  into  the  said  dwelling  [or  other 
possession],  without  the  leave  and  against  the  will  of  the  de- 
fendant. 

IV.  That  the  defendant  thereupon,  in  order  to  preserve 
the  peaceable  possession  thereof,  resisted  the  plaintiff's 
entrance,  and  in  doing  so  necessarily  assaulted  and  beat  the 
plaintiff,  as  he  lawfully  might;  and  if  the  plaintiff  sustained 
any  damage,  it  was  occasioned  by  his  own  wrong. 

V.  That  the  acts  above  mentioned  are  the  same  of  which 
the  plaintiff  complains. 


Chapter  CXIL]  1515  [Forms  2166,  2167. 

2166.  Justification  of  removing  plaintiff  from  railroad 

car  for  non-payment  of  fare. 

I.  That  the  defendant  was,  before  and  at  the  time  when 
the  said  grievances  were  committed,  the  conductor,  and  had 
charge  of  a  passenger-train  on  the  railroad  of  the  .... 
Railroad  Company,  running  from  ....  to  .... 

II.  That  one  of  the  regulations  of  said  railroad  company 
was,  that  no  person  should  be  permitted  to  be,  and  remain, 
on  such  train  without  having  a  ticket  therefor,  duly  obtained 
of  their  authorized  agents. 

III.  That  at  the  time  mentioned  in  the  complaint  the 
plaintiff  was  on  the  said  train,  without  having  a  ticket  there- 
for as  aforesaid,  and  upon  demand  made  by  this  defendant 
refused  to  pay  any  fare  in  cash. 

IV.  That  the  defendant  then  and  there  requested  the 
said  plaintiff  to  leave  the  said  train,  which  the  plaintifT 
refused  to  do;  whereupon  the  defendant  then  and  there  gently 
laid  his  hands  upon  the  said  plaintiff,  and  removed  him  from 
the  train,  doing  no  unnecessary  violence,  as  he  lawfully 
might  do;  which  is  the  act  complained  of  by  the  plaintiff. 

[V.  That  the  defendant  so  removed  the  plaintiff  from  said 
train  at  the  station  of  ... .  which  is  one  of  the  usual  stopping 
places  on  said  railroad,  o/-,  near  the  dwelling  house  of  one 
Y 

2167.  Defense  of  possession  of  goods. 

I.  That  at  the  time  in  the  complaint  mentioned  the  de- 
fendant was  the  owner  and  in  the  actual  possession  of 
[describe  goods],  and  plaintiff  was  wrongfully  about  to  take 
and  carry  away  and  convert  the  same  to  his  own  use,  and  de- 
fendant requested  him  to  refrain  from  doing  so,  but  plaintifT 
persisted,  whereupon  defendant  gently  laid  his  hands  upon 
plaintiff  and  used  sufficient  force  to  cause  him  to  desist  from 
taking  the  said  property,  using  no  more  force  than  was 
reasonably  necessary,  and  such  acts  of  defendant  are  those  of 
which  plaintiff  complains  in  the  complaint  herein. 

1  If  the  statute  limits  the  places      swer  should  show  compliance  there- 
where  a  passenger  may  be  put  off      •with.    Wis.  Stats.  1913  sec.  1818. 
for  non-payment  of  fare,  the  an- 


Form  2168.]  151G  [Chapter  CXII. 

2168.    Moderate  correction  of  an  apprentice. 

I.  That  the  plaintiff  was,  at  the  time  mentioned  in  the 
complaint,  the  apprentice  of  the  defendant  in  his  trade  and 
business  of  a ;  that  the  plaintiff,  then  and  prior  there- 
to, had  conducted  himself  contumaciously,  and  refused  to 
obey  defendant's  lawful  commands  relating  to  his  duty  as 
such  apprentice;  that  thereupon  the  defendant  moderately 
corrected  him,  the  plaintiff,  for  his  said  misbehavior,  which 
are  the  acts  of  which  the  plaintiff  complains. 


CHAPTER  CXIII. 

DEFENSES  IN  ACTIONS  OF  FALSE  IMPRISONMENT 
AND  MALICIOUS  PROSECUTION. 


2169.  Denial  that  defendant  caused 

arrest. 

2170.  Denial  of  malice  and  want  of 

probable  cause. 

2171.  Justification  of  arrest  upon 

suspicion  of  a  felony. 

2172.  Justification  by  officer,  of  the 

same. 


2173.  Justification,  by  officer,  of  an 

arrest  for  breach  of  peace. 

2174.  The   same,   of   arrest   under 

criminal  process. 

2175.  The  same,  of  arrest  and  im- 

prisonment under  civil  pro- 
cess. 

2176.  The   same,    under   order   of 

arrest. 


2169.  Denial  that  defendant  caused  arrest. 

The  defendant  denies  that  he  caused  or  procured  said 
order  of  arrest  [or,  said  process],  to  be  issued,  [or,  denies 
that  he  caused  the  arrest  or  imprisonment  of  plaintiff  as 
alleged  or  otherwise]. 

2170.  Denial  of  malice  and  want  of  probable  cause. 

The  defendant  denies  that  he  falsely  and  maliciously,  or 
without  probable  and  reasonable  cause,  caused  the  said 
plaintiff  to  be  arrested,  as  alleged  or  otherwise. 

2171.  Justification  of  arrest  upon  suspicion  of  a  felony. 

I.  That  immediately  before  the  time  mentioned  in  the 
complaint,  a  felony  was  committed  [here  briefly  state  the 
felony  and  causes  of  suspicion  against  the  plaintiff]. 

II.  That  thereupon  the  defendant,  having  reasonable 
cause  to  suspect  the  plaintiff  of  having  committed  such  fel- 
ony*, arrested  him  and  carried  him  before  M....  N....,  a 

justice  of  the  peace  of  the  town  of [or  other  magistrate], 

to  be  dealt  with  according  to  law. 

III.  That  the  above  acts  are  the  same  of  which  plaintiff 
complains. 

2172.  Justiiication  by  officer,  of  the  same. 

I.     That  at  and  immediately  before  the  time  mentioned 


Forms  2173,  2174.]  1518  [Chapter  CXIII. 

in  the  complaint,  the  defendant  was  a  constable  of  the  town 
of [or  designate  other  official  capacity]. 

II.  That  he  was  then  informed  by  [here  state  sources  of 
information]  that  a  felony  had  been  committed,  in  the  rob- 
bery of  [here  state  felony,  and  the  grounds  of  the  suspicion  o] 
the  plaintiff]. 

III.  That  thereupon,  believing  such  information  to  be 
true,  and  acting  thereon,  as  was  his  duty  to  do  [continue  as 
in  the  preceding  form,  from  the*]. 

2173.  Justification,  by  officer,  of  an  arrest  for  breach  of 

peace. 

I.  That  at  the  time  mentioned  in  the  complaint  [hero, 
state  a  breach  of  the  peace  on  the  part  of  the  plaintiff,  according 
to  the  fact,  e.  g.,  as  in  forms  in  next  preceding  chapter]. 

II.  Thereupon  the  defendant  Y . .  .  .  gave  charge  of  the 
plaintiff  to  the  defendant  Z . . . .  [the  officer]  who  was  a  con- 
stable [or  other  officer  of  the  peace],  [who  then  and  there  had 
view  of  the  said  breach  of  the  peace  committed  by  the  plain- 
tiffl. 

III.  That  the  defendant  Z [the  officer],  at  the  request 

of  the  defendant  Y. . . .,  and  the  defendant  Y, . . .  assisting 
the  defendant  Z . . . .,  then  and  there  gently  laid  their  hands 
upon  the  plaintiff,  in  order  to  take  him  into  the  custody  ol 
such  officer,  and  carry  him  before  a  justice  of  the  peace  [or 
other  magistrate],  for  examination  concerning  the  premises, 
and  to  be  dealt  with  according  to  law. 

IV.  That  the  acts  above  mentioned  are  the  same  of  which 
plaintiff  complains. 

2174.  The  same,  of  arrest  under  criminal  process. 

I.  That  before  and  at  the  time  of  the  committing  of  the 
alleged  trespasses,  he,  the  said  defendant,  was  a  constable 
within  and  for  the  town  of in  the  county  of 

II.  That  a  warrant  duly  issued  by    one  M....  N 

under  his  hand  and  seal,  the  said  M . . . .  N .  . . .  then  being  a 

justice  of  the  peace  within  and  for  the  said  to\\Ti  of 

and  directed  to  any  constable  of  said then  was  delivered 

to  this  defendant  as  such  constable  to  be  executed;  whereby 
he  was  commanded  to  arrest  the  said  plaintiff,  and  have  him 
forthwith  before  said  justice,  or  some  other  justice  of  the 


Chapter  CXIII.]  1519  [Form  2175. 

peace  for  said  county  of there  to  answer  to  the  charge 

of  having  feloniously  stolen  and  carried  away  the  goods  and 

chattels  of  one to  the  value  of dollars  [setting 

forth  the  tenor  or  warrant  according  to  its  effect]. 

III.  That  by  virtue  of  the  said  warrant  so  issued,  he,  the 
said  defendant,  did  arrest  the  said  plaintiff,  and  had  him  in 
his  custody  until  he,  as  soon  as  he  conveniently  could,  took 
the  said  plaintiff  before  the  said  justice  of  the  peace,  to 
answer  to  the  complaint  aforesaid,  as  will  appear  by  his 
return,  duly  entered  on  the  said  warrant  [or,  writ,  etc.], 
which  are  the  acts  of  which  the  plaintiff  complains. 

2175.    The  same,  of  arrest  and  imprisonment  under  civil 
process. 

I.  That  at  the  time  mentioned  in  the  complaint,  the 
defendant  Y . . . ,  [the  officer]  was  a  sheriff  of  the  county  of 
in  this  state. 

II.  That  on  the. . .  .day  of ,  19. .,  the  defendant 

X. . . .  [the  one  at  whose  suit  the  process  was  issued,  or,  if  he 
is  not  made  a  defendant,  one  X....,  naming  the  judgment- 
creditor]  duly  recovered  a  judgment  in  the court  of 

this  state,  in  and  for  the  county  of against  the  said 

A....    [the  plaintiff  in  the  present  action],  for  the  sum  of 

dollars,  in  an  action  in  which  the  said  A. . .  .might 

have  been  arrested,  as  provided  by  the  statutes  of  the  state  of 
,  which  judgment,  at  the  time  mentioned  in  the  com- 
plaint, was  in  force,  and  wholly  unsatisfied  [or,  unsatisfied  in 
part]. 

III.  That  on  the.... day  of ,  19..,  an  execution 

against  the  property  of  the  plaintiff  in  this  action  was  duly  is- 
sued on  said  judgment,  and  afterwards  was  returned  wholly 
unsatisfied  [or  unsatisfied  in  part]. 

IV.  That  afterwards,   and  on  or  about  the ....  day  of 

,  19 . .,  an  execution  against  the  person  of  the  plaintiff 

in  this  action  was  duly  issued  upon  said  judgment,  and  de- 
livered to  the  defendant  Y.  .  . .  [the  sheriff]  to  be  executed. 

V.  That  by  virtue  of  the  said  execution,  and  before  the 
return-day  thereof,  the  defendant  Y . . . .  gently  laid  his 
hands  upon  the  plaintiff  in  order  to  arrest  him,  and  take  and 
detain  him  under  the  said  execution,  which  is  the  same  act  of 
which  the  plaintiff  complains. 


Form  2176.1  1520  [Chapter  CXIII. 

VI.  That  the  defendant  Z . . . . ,  by  the  command  of  the 
defendant  Y . . . . ,  and  in  his  aid  and  assistance,  did  gently  lay 
their  hands  upon  the  plaintiff  in  order  to  take  him  into  cus- 
tody; and  the  defendant  Y. . . .  detained  him  in  custody  un- 
der said  execution,  according  to  law;  which  acts  are  the 
same  of  which  the  plaintiff  complains. 

2176.    The  same,  under  order  of  arrest. 

I.  [As  in  preceding  form.] 

II.  That  on  or  before  the  time  mentioned  in  the  com- 
plaint, an  order  was  duly  made  by  the court  of  this 

state,  in  and  for  the  county  of [or  other  court  or  officer]; 

whereby  [here  recite  the  commands  of  the  order]. 

III.  That  on,  etc.,  said  order  was  delivered  to  the  de- 
fendant [the  officer]  to  be  executed. 

IV.  That  by  virtue  of  said  order  [continue  as  in  preceding 
form]. 


CHAPTER  CXIV. 

DEFENSES  IN  ACTIONS  FOR  LIBEL  AND 
SLANDER. 


2177.  General     outline     form     of 

answer,  denial,  justifica- 
tion and  mitigation. 

2178.  Notice  that  matter  already 

pleaded  in  justification  will 
also  be  proved  in  mitiga- 
tion. 

2179.  Justification      of      charging 

plaintiff  with  corruption 
and  extortion  in  a  public 
office. 

2180.  Justification  of  charge  of  per- 

jury. 

2181.  Justification  and  mitigation. 

2182.  Justification    and    denial    of 

malice;  in  charge  of  lar- 
ceny. 

2183.  Mitigation,  republication  of 

news  from  other  papers. 

2184.  That  the  alleged  libel  was  a 

privileged  communica- 
tion. 

2185.  The  same,  a  shorter  form. 


2186.  That  the  alleged  slander  was 

a  privileged  communica- 
tion by  a  clerk  to  his  em- 
ployer. 

2187.  The  same,  of  a  fair  report  of 

public  official  proceedings. 

2188.  Another  form. 

2189.  Privileged  statement  made  in 

answer  to  business  in- 
quiries. 

2190.  Privileged      communication; 

petition  to  supervisors  to 
revoke  license  of  a  disor- 
derly house. 

2191.  Privileged       communication 

from  one  director  to  an- 
other. 

2192.  Privileged  communication  to 

one  having  an  interest. 

2193.  Fair  comment  on  conduct  of 

a  public  officer. 

2194.  Report  by  a  commercial  or 

mercantile  agency. 

2195.  Answer  in  action  for  slander 

of  title. 


In  both  of  these  actions  the  codes  generally,  if  not  uni- 
versally, provide  that  the  defendant  may  both  allege  the 
truth  of  the  supposed  defamatory  matter,  and  at  the  same 
time  allege  mitigating  circumstances  to  reduce  the  amount  of 
damages,  and  his  failure  to  prove  the  truth  will  not  affect  his 
right  to  insist  upon  the  mitigating  circumstances.  These  de- 
fenses should  be  pleaded  separately,  and  mitigation  should 
be  pleaded  only  as  a  partial  defense.  Doubtless  also  the  de- 
fendant may  deny  the  slander  and  justify  in  the  same  an- 
swer, or  may  justify  and  plead  privilege. 
96 


Forms  2177-2179.]  1522  [Chapter  CXIV. 

2177.  General  outline  form  of  answer,  denial,  justifica- 

tion and  mitigation. 

The  defendant,  answering  the  complaint  of  the  plaintiff, 
denies  [here  deny  publication  or  any  other  material  fact  or 
facts  which  are  to  be  put  in  issue]. 

II.  For  a  second  and  further  defense  the  defendant  al- 
leges [upon  information  and  belief]  that  the  said  supposed 
defamatory  words   set   forth  in  the  complaint   herein   are 

true;  that,  on  or  about ,  19.  .,  and  prior  to  the  alleged 

time  of  the  speaking  [or  publishing]  of  said  words  the  plain- 
tiff feloniously  stole  and  carried  away the  property 

of  defendant,  of  the  value  of dollars,  and  that  the 

said so  stolen  is  the  same  property  referred  to  in  the 

alleged  slanderous  words  set  forth  in  plaintiff's  complaint. 

III.  And  for  a  partial  defense,  and  by  way  of  mitigation 
of  damages,  the  defendant  alleges  [here  set  forth  want  of 
malice,  provocation,  republication  of  current  news,  honest  be- 
lief in  truth,  with  facts  on  which  it  was  based,  etc.]. 

2178.  Notice  that  matter  already  pleaded  in  justification 

will  also  be  proved  in  mitigation  (sustained  in 
Howard  v.  Raymond,  11  Abb.  Pr.  155). 

And  in  mitigation  of  any  damages  to  which  the  plaintiff 
might  otherwise  appear  entitled  by  reason  of  the  publication 
of  said  supposed  libelous  article,  this  defendant  repeats  and 
renews,  all  and  singular,  the  matters  stated  under  the  second 
defense  herein;  and  will  give  evidence  thereof  in  mitigation 
of  damages,  as  well  as  in  justification. 

2179.  Justification  of  charging  plaintiff  with  corruption 

and  extortion  in  a  public  office. 

The  defendant  answers  the  complaint  of  the  plaintiff  here- 
in, as  follows: 

For  the  first  defense. — I.  The  defendant  denies  knowledge 
or  information  sufficient  to  form  a  belief,  whether  the  plaintiff 
was  ever  at  any  time  a  harbor-master  of  the  port  of  New 
York,  or  was  ever  duly  nominated  and  appointed  such 
harbor-master,  as  alleged  in  the  complaint;  but  defendant 
admits  that  at  the  times  referred  to  in  the  complaint, 
plaintiff  was  acting  as  harbor-master  of  said  port.  The 
defendant  admits  that  the  lawfully  appointed  harbor-masters 


Chapter  CXIV.]  1523  [Form  2179. 

of  the  port  of  New  York  have  each  of  them,  within 
the  district  to  which  he  is  specially  appointed  and  as- 
signed, such  power  and  authority  as  are  in  the  complaint  al- 
leged; but  defendant  denies  knowledge  or  information  suffi- 
cient to  form  a  belief,  whether  plaintiff  ever  had  lawful  right 
or  appointment  to  exercise  such  powers  and  authority  as 
harbor-master. 

II.  Defendant  denies  that  the  plaintiff  had,  prior  to  this 
action,  earned  or  maintained  a  good  reputation,  name,  or 
fame,  or  that  he  enjoyed  the  confidence  of  his  superiors,  or 
that  of  the  public  or  of  his  neighbors  in  the  duties  of  said 
office,  or  that  he  enjoyed  or  maintained  a  good  character  or 
reputation;  and  defendant  says,  that  at  the  tim.es  herein- 
after mentioned,  plaintiff  had  been  guilty  of  the  mal- 
practice and  misconduct  hereinafter  mentioned,  and  of 
taking  the  excessive  and  illegal  fees  hereinafter  mentioned; 
and  that  by  reason  thereof  he  became,  and  was,  at  all  the 
times  mentioned  in  the  complaint,  a  person  of  bad  name, 
fame,  and  reputation. 

III,  Defendant  denies  all  the  allegations  in  the  complaint 
contained,  not  hereinbefore  specifically  admitted. 

Second  defense. — I.  The  defendant,  further  answering, 
says,  that  the  said  supposed  libelous  matters  set  up  in  the 
complaint  are  true  of  the  plaintiff,  as  follows: 

II.  That  the  plaintiff,  prior  to  the  ....  day  of , 

19. .,  and  while  acting,  or  claiming  to  act,  as  harbor-master 
of  the  port  of  New  York,  was  guilty  of  official  misconduct  in 
divers  instances. 

III.  That  by  a  rule  prescribed  by  the  captain  of  the  port 
of  New  York,  pursuant  to  authority  vested  in  him  by  law, 
regulating  the  conduct  of  harbor-masters,  which  rule  had  for 
a  long  time  been,  and  still  was,  on  the  said  ....  day  of 
,  19.  .,  in  force,  and  well  known  to  plaintiff,  harbor- 
masters were  required  to  discharge  their  duties  in  person,  and 
the  appointment  of  a  deputy  by  any  harbor-master  was  pro- 
hibited. But  notwithstanding  this  rule,  and  in  violation 
thereof,  the  plaintiff  at  some  time  prior  to  said  last-mentioned 
day,  but  at  what  precise  date  defendant  d®es  not  know  and 
cannot  state,  did  corruptly  and  unlawfully  conspire  with,  and 
pretend  to  appoint  one  N . . . .  to  act,  or  pretend  to  act,  as 
deputy  harbor-master  under  the  plaintiff. 


Form  2180.]  1524  [Chapter  CXIV. 

IV.  That  the  plaintiff  and  N....  entered  into  an  ar- 
rangement and  understanding  with  each  other,  pursuant  to 
which  the  plaintiff  was  accustomed  for  a  long  period  prior 

to  the  ....  day  of ,  19.  .,  to  direct  persons  applying 

to  him  as  harbor-master  for  berths  for  vessels,  to  apply  to 
said  N . . . . ,  and  the  said  N . . .  .  was  accustomed,  with  the 
knowledge  and  connivance  of  the  plaintiff,  to  exact  illegal 
and  excessive  fees  for  giving  berths  to  vessels  of  such  ap- 
plicants. 

V.  That  in  many  instances  the  plaintiff,  and  in  other  in- 
stances the  said  N . . . .,  under  and  in  pursuance  of  the  afore- 
said understanding  and  agreement  between  himself  and  the 
plaintiff,  did  exact  from  persons  applying  for  berths  for  ves- 
sels illegal  and  excessive  fees. 

VI.  That  the  plaintiff,  on  the  ....  day  of 19 . ., 

unlawfully  exacted  and  received  from  U . . . .   V coal 

merchants,  doing  business  at   the  sum  of   

dollars,  for  obtaining  a  berth  for  the  coal-barge  Z.... 
That  on  or  about,  etc.,  W. . . .  X. . . .,  clerk  with  Y. . . .  & 
Z....,  shipping  merchants  doing  business  at  ,  ap- 
plied to  the  plaintiff  for  a  berth  for  the  ship  Y . . . .  That 
the  plaintiff  referred  him  to  said  N . .  . .  who,  pursuant  to  the 
corrupt  and  unlawful  agreement  between  N . . . .  and  the 
plaintiff  above  stated,  exacted  and  received  from  him  the 

sum  of dollars,  in  addition  to  the  fees  allowed  by 

law  for  giving  said  ship  a  berth  [other  instances  to  be  stated 
in  a  similar  way]. 

2180.    Justification  of  charge  of  perjury. 

That  before  the  speaking  [or,  publishing]  of  the  words  al- 
leged in  the  complaint,  and  at  a  term  of  the court, 

duly  held  at in  the  month  of ,  19 .  .,  before  one 

of  the  judges  of  the court,  upon  trial  of  an  action  there 

pending  between  one  M N . . . . ,  as  plaintiff  and  0 .  . .  . 

P....    as   defendant,   A....    B the   plaintiff   in   this 

action,  appeared  as  a  witness  for  and  on  behalf  of  the  said 
M . . . .  N .  . . .  and  was  then  and  there,  in  open  court,  duly 
sworn,  and  took  oath  to  speak  the  truth,  the  whole  truth, 
and  nothing  but  the  truth,  touching  and  concerning  the  mat- 
ters in  question  in  the  said  issue. 


Chapter  CXIV.]  1525  [Form  2181. 

II.  That  the  plaintiff,  being  so  sworn,  falsely  and  wil- 
fully, and  maliciously  deposed  and  gave  evidence,  among 
other  things,  that  [here  set  forth  that  part  of  the  plaintiff's 
evidence  in  which  he  committed  perjury],  and  that  the  said 
plaintiff  then  knew  the  said  evidence  was  false  and  untrue. 

III.  That  in  truth  [here  negative  the  plaintiff's  evidence, 
as  in  an  indictment  for  perjury]. 

IV.  That  the  truth  of  the  matters  hereinbefore  stated 
were  material  and  pertinent  to  the  issue  there  tried. 

V.  That  this  defendant,  in  charging  the  plaintiff  with 
perjury,  as  alleged  in  the  complaint  herein,  referred  to  the 
said  evidence  so  falsely  given  by  the  plaintiff  as  above  set 
forth. 

2181.    Justification  and  mitigation. 

For  a  first  defense  the  defendant  alleges  that  the  supposed 
defamatory  words  [or,  libel]  in  the  complaint  set  forth  [and 
each  allegation  therein  contained]  are  [is]  true  of  the  plaintiff, 
as  follows:  that  is  to  say,  that  before  the  time  alleged  in  the 
complaint  as  the  time  of  speaking  of  the  words  [or,  of  the 
publication  of  the  supposed  libel]  in  the  complaint  set  forth, 
to-wit,  on  the  ....  day  of ,  19. .,  at  ...•.,.,  the  plain- 
tiff did  felonioulsy  steal  and  carry  aw^ay  twenty-five  bushels 
of  corn,  the  property  of  this  defendant. 

Second.     For  a  second  defense,  this  defendant  alleges: 

I.  That  on  the  ....  day  of ,  19. .,  at ,this 

defendant  and  the  plaintiff  entered  into  an  agreement  that 
the  plaintiff  should  take  from  this  defendant  a  piece  of  land 
situate  in  said  city,  and  plant  the  same  with  corn,  on  shares 
with  this  defendant, — the  plaintiff  to  be  at  all  the  labor 
and  expense  of  planting  said  land  with  corn,  and  cutting, 
harvesting,  and  securing  the  same,  and  have  as  his  remuner- 
ation therefor  one-half  of  whatever  corn  should  be  raised 
upon  said  land;  which  corn  was  to  be  equally  divided,  in 
the  ear,  between  the  plaintiff  and  this  defendant. 

II.  That  the  said  land  was  accordingly  planted  and  har- 
vested by  said  plaintiff;  but  the  said  plaintiff,  while  cutting, 
harvesting,  and  securing  said  corn,  or  immediately  after  it 
was  cut,  harvested,  and  secured,  instead  of  fairly  and  honest- 
ly dividing  said  corn  equally  with  this  defendant,  fraudulent- 
ly, dishonestly,  and  unfairly  secreted,  carried  away,  and  con- 


Forms  2182,  2183.]  152G  [Chapter  CXIV. 

verted  to  his  own  use,  without  the  knowledge  or  consent  of 
this  defendant,  a  considerable  quantity  of  said  corn,  with  the 
intent  to  appropriate  the  same  wholly  to  his  own  use,  and  to 
give  no  account  thereof  to  the  defendant. 

III.  That  the  same  being  discovered  by  the  defendant, 
he  did  thereupon  charge  the  said  plaintiff  with  having  stolen 
said  corn,  which  the  plaintiff  admitted  and  confessed  [and 
pretended  to  express  great  penitence  therefor];  which  above 
facts  the  defendant  will  give  in  evidence  on  the  trial  of  this 
action,  in  mitigation  of  any  damages  the  said  plaintiff 
may  be  entitled  to  recover. 

2182.  Justification  and  denial  of  malice;  in  charge  of 

larceny. 

I.  That  each  and  every  article  in  the  complaint  men- 
tioned as  having  been  charged  by  defendant  to  have  been 
stolen  by  the  plaintiff,  had,  at  the  time  mentioned  in  the 
complaint,  been  taken  and  stolen  from  the  said  defendant. 

II.  That  the  defendant  is  informed  and  believes  that  the 
plaintiff  has  been,  and  is,  guilty  of  each  and  every  charge  in 
said  complaint  alleged  to  have  been  made  against  her  by  the 
defendant;  and  that  whatever  the  defendant  has  said  of  or 
concerning  the  plaintiff  she  has  said  in  the  full  belief  of  its 
truth  and  verity,  and  in  self-vindication  and  warning  to 
others,  and  not  from  any  motives  of  malice  towards  the 
plaintiff. 

2183.  Mitigation,  republication  of  news  from  other  pa- 

pers (sustained  in  Howard  v.  Raymond,  11  Abb. 
Pr.  IEj). 

The  defendant,  by  way  of  mitigation  of  any  damages  to 
which  the  plaintiff  might  otherwise  appear  entitled  by  reason 
of  the  republication  of  said  supposed  libelous  article,  alleges 
that  all  the  matters  and  things  stated  under  the  second  de- 
fense were,  on  the  ....  day  of  ,  19.  .,  currently  re- 
ported and  believed  in  the  cities  of  New  York  and  Brooklyn, 
and   were    published    in    a   certain    newspaper,    called    the 

N.  .  .  .  Z.  .  .  .,  published  in  said  city  of and  were  S3 

communicated  to  this  defendant,  and  were  published  by 
him  as  matters  of  current  public  news,  he  verily  believing 
the  same  to  be  true. 


Chapter  CXIV.]  1527  [Forms  2184,  2185. 

2181    That  the  alleged  libel  was  a  privileged  communica- 
tion. 

That  in  the  month  of ,  19 . .,  at  the  city  of  New 

York,  the  plaintiff  brought  an  action  against  this  defendant 

in  the court,  for  having,  as  alleged,  maliciously,  and 

without  probable  cause,  prosecuted  the  said  plaintiff  on  a 
charge  of  obtaining  money  by  false  pretenses,  and  this 
plaintiff  was  arrested  in  said  action  by  an  order  of  arrest 
issued  therein. 

II.  That  afterwards,  on  the  ....  day  of ,  19 . .,  at 

said  city,  this  defendant  did,  by  his  attorney,  procure  an 
order  from  one  of  the  justices  of  said  court,  requiring  the 
plaintiff  to  show  cause,  at  a  certain  day  and  place  therein 
named,  why  this  defendant  should  not  be  discharged  from 
said  arrest,  or  why  the  sum  in  which  he  was  held  to  bail 
should  not  be  reduce'd. 

III.  That  said  order  was  granted  upon  an  affidavit  of 
this  defendant,  made  in  answer  to  an  afTidavit  made  by  the 
plaintiff  upon  which  the  order  of  arrest  aforesaid  was  granted, 
and  for  the  purpose  of  procuring  this  defendant's  discharge  or 
a  reduction  of  bail  as  aforesaid. 

IV.  That  the  supposed  libel  in  the  complaint  set  forth  is 
a  part  of  said  afTidavit  of  this  defendant,  and  was  published 
by  him  by  the  presentation  of  said  affidavit  to  the  court 
upon  said  motion,  and  not  otherwise. 

[V.  This  defendant  denies  that  he  published  said  sup- 
posed libel  maliciously,  or  with  the  intent  charged  in  the 
complaint.] 

VI.  That  said  supposed  libelous  matter  was  pertinent 
and  relevant  in  said  motion,  and  for  the  purpose  of  procuring 
the  relief  prayed  for  therein.  [Or,  That  this  defendant  had 
reasonable  cause  for  believing,  and  did  in  fact  believe,  at  the 
time  of  said  publication,  that  the  same  was  true  and  perti- 
nent, etc.,  as  above.] 

2185.    The  same,  a  shorter  form. 

That  at  the  time  of  publishing  the  words  mentioned  in  the 
complaint,  an  action  was  pending  in  the court,  be- 
tween [the  parties  to  this  action]. 

II.  That  at  the  time  this  defendant  applied  to  A.... 
B . . . .,  a  justice  of  the  said  court,  for  an  order  of ; 


Forms  2186-2188.]  1528  [Chapter  CXIV. 

and  upon  his  application  presented  to  the  said  justice  an 
affidavit  containing  the  words  complained  of,  which  affidavit 
was  pertinent  and  relevant  to  the  said  application. 

III.  That  the  defendant  did  not  in  any  other  way  pub- 
lish the  said  words. 

2186.  That  the  alleged  slander  was  a  privileged  com- 

munication by  a  clerk  to  his  employer. 

I.  That  he  was,  at  the  time  of  uttering  the  words  men- 
tioned in  the  complaint,  the  confidential  clerk  of  A ....  B  ... . 

II.  That  the  said  A. . . .  B  . .  , .  inquired  of  the  defendant 
the  character  of  the  plaintiff  [with  a  view  to  employing  him 
as  a  clerk,  or  otherwise],  and  the  defendant  then  stated  to 
him  the  matter  referred  to  in  the  complaint,  and  that  the 
defendant  did  not  make  said  statement  to  any  other  person, 
or  otherwise  publish  said  words. 

III.  That  the  defendant  had  probable  cause  for  believ- 
ing, and  did  believe,  the  same  to  be  true. 

2187.  The  same,  of  a  fair  report  of  public  official  pro- 

ceedings. 

I.  That  on  the  ....  day  of ,  19 . .,  in  the  course  of 

a  certain  trial  then  pending  in  the court  of 

wherein  0 . . . .  P . . . .  was  plaintiff  and  R . .  . .  S .  . . .  was 
defendant,  one  M....  N....,  counsel  for  said  0. ... 
P. . . .  made  a  public  statement  or  speech. 

II.  That  the  defendants,  as  publishers  and  proprietors  of 
the  N . . . .  Z . . . . ,  published  in  said  newspaper  a  fair  and 
true  report  of  the  judicial  proceedings  had  upon  such  trial, 
and  of  the  public  statement  or  speech  made  as  aforesaid  in 
the  course  thereof,  which  publication  is  the  same  publica- 
tion as  that  in  the  complaint  set  forth  [or,  of  which  publica- 
tion the  supposed  libelous  article  in  the  complaint  set  forth 
is  a  part]. 

III.  That  defendants  deny  that  they  published  the  same 
maliciously,  or  with  intent  to  injure  the  plaintiff,  or  with  the 
intent  charged  in  the  complaint. 

2188.  Another  form. 

I.     That  on  the  ....  day  of ,  19 . . ,  at an 

action  was  tried  in  the court  of in  which  A . . . . 


Chapter  CXIV.]  1529  [Forms  2189,  2190. 

B . . . .  was  the  plaintiff,  and  the  plaintiff  herein  was  de- 
fendant [or,  an  indictment  having  been  found  against  the 
plaintiff  for ,  he  was  tried  therefor  in  the  court  of  ses- 
sions for  the  county  of ,  or  otherwise]. 

II.  That  the  article  published  in  the  defendant's  news- 
paper, as  stated  in  the  complaint,  was  a  fair  and  true  report  of 
the  [testimony  of  one  of  the  witnesses,  named  C . . . .  D . . . .] 
made  in  the  course  of  the  said  trial. 

III.  [May  add  paragraph  III  from  preceding  form.] 

2189.  Privileged  statement  made  in  answer  to  business 

inquiries. 

I.     The  defendant  alleges  that  prior  to  the  ....  day  of 

,  19. .,  the  plaintiff  had  been  in  the  employ  of  the 

defendant  as  a  [bookkeeper]  and  that  on  or  about  said  date 
the  plaintiff  was  endeavoring  to  obtain  a  like  position  from 
one  M . , . .  N . . . . ;  and  the  said  M .  . . .  N . . . , ,  knowing  that 
the  plaintiff  had  been  in  the  defendant's  employ,  made  cer- 
tain inquiries  of  the  defendant  as  to  the  character  of  the 
plaintiff  and  his  ability  as  a  bookkeeper,  in  response  to  which 
inquiries  the  defendant,  as  he  lawfully  might,  wrote  and  sent 
to  the  said  M . .  .  .  N . . . . ,  by  mail,  the  letter  set  forth  in  the 
complaint,  but  did  not  publish  the  said  letter  nor  disclose  its 
contents  to  any  other  person  nor  in  any  other  way  than  that 
above  stated;  that  said  letter  was  written  and  sent,  and  the 
statements  therein  made  in  full  belief  that  the  same  were  true 
and  correct,  and  without  malice  on  the  part  of  this  defend- 
ant, and  the  defendant  alleges  that  said  letter  was  and  is  a 
privileged  communication. 

2190.  Privileged  communication;  petition  to  supervisors 

to  revoke  license  of  a  disorderly  house  (adapted 
from  Werner  v.  Ascher,  86  Wis.  349;  56  N.  W. 
869). 

I.  The  defendants  admit  that  at  the  times  stated  in  the 
complaint  the  plaintiff  was  a  duly  licensed  saloonkeeper  in 

the  town  of county  of and  that  on  the  .... 

day  of ,  19.  .,  these  defendants  signed  a  petition  ad- 
dressed to  the  board  of  supervisors  of  said  town,  in  substance 
and  effect  like  the  petition  set  forth  in  said  complaint,  but 
defendants  deny  that  they  wrote  said  petition  or  published 


Forms  2191,  2192.]  1530  [Chapter  CXIV. 

the  same  or  any  part  thereof,  save  that  they  caused  the  same 
to  be  presented  to  the  said  town  board  of  supervisors. 

II.  The  defendants  further  allege  that  they  reside  in 
the  immediate  vicinity  of  the  plaintiff's  said  saloon,  and  that 
for  a  long  time  prior  to  the  making  and  presentation  of  said 
petition  the  plaintifT  did  not  keep  his  said  saloon  in  an  orderly 
manner,  and  that  rows  and  disturbances  were  very  frequent 
therein,  so  much  so  that  defendants  were  kept  awake  nights 
by  the  noise  [state  fully  the  fads]. 

'  III.  That  on  account  of  the  said  disgraceful  and  boister- 
ous disturbances  in  said  saloon,  these  defendants  signed  the 
said  petition  for  revocation  of  the  plaintifT's  license,  and 
caused  the  same  to  be  presented  to  the  said  board  of  super- 
visors without  malice  and  in  the  full  belief  that  the  state- 
ments therein  contained  are  true,  and  the  defendants  by 
reason  of  the  facts  above  set  forth  allege  that  the  making  of 
such  petition,  and  the  presentation  thereof  to  the  said 
board  of  supervisors  were  privileged  by  law. 

2191.  Privileged  communication  from  one  director  to 

another. 

That  at  the  time  of  the  alleged  speaking  of  the  words 
set  forth  in  the  complaint  herein,  the  defendant  was  one  of 

the  directors  of  the   Company,  and  that  all  of  the 

words  spoken  of  and  concerning  plaintiff  by  this  defendant 
was  at  a  meeting  of  the  directors  or  to  other  directors  of 

said   Company,   in   relation   to    the    character    and 

fitness  of  the  plaintiff   for   the   position  of   [state  position] 

of  said Company,  and  in  no  other  relation  whatever; 

that  the  said  words  were  spoken  without  malice,  and  de- 
fendant alleges  that  the  words  complained  of  were  and 
are  privileged  communications  for  which  this  defendant 
is  not  liable  to  an  action. 

2192.  Privileged  communication  to  one  having  an  in- 

terest. 

That  on  or  about  the  ....  day  of ,  19 .  .,  the  plain- 
tiff, who  had,  prior  thereto,  been  employed  by  the  defend- 
ant, applied   to   one    E .  . . .   F .  .  .  .    for   employment,    and 

that  on  or  about  the   ....  day  of   ,  19.  .,   the  said 

E. . . .  F. . . .  requested  of  the  defendant  that  he  would  com- 


Chapter  CXIV.]  1531  [Forms  2193,  2194. 

municate  to  the  said  E F any  facts  within  this 

defendant's  knowledge  of  and  concerning  the  plaintifT's 
character  and  integrity;  that  in  response  to  said  request,  the 
defendant  did  speak  the  words  complained  of,  as  alleged  in 
the  complaint  herein,  without  any  malice  and  in  good  faith, 
believing  the  same  to  be  true. 

2193.    Fair  comment  on  conduct  of  a  public  officer. 

I.  That  plaintiff  on  the   ,  19..,  was  and  still  is 

mayor  of  the  city  of duly  elected  and  acting  as  such. 

II.  That  the  words  set  forth  in  the  complaint  were 
[part  of]  an  article  in  the  defendant's  newspaper,  called  the 
,  published  at ,  and  were  and  are  a  fair,  and  im- 
partial comment  upon  a  matter  of  public  interest,  viz. 
[state  the  subject  of  the  article,  as,  for  instance,  upon  the  con- 
duct of  the  plaintiff  in  his  public  capacity  as  mayor  of  the 

city  of in  refusing  on  the day  of ,  19 .  ., 

to  allow  one to  have  the  use  of  the  town  hall  of  the 

said  village  for  the  purpose  of  delivering  a  lecture  therein], 
and  said  words  were  published  by  the  defendant  without 
malice  and  with  an  honest  belief  in  their  truth. 

2i94.    Report  by  a  commercial  or  mercantile  agency. 

I.  That  the  defendant  is  a  corporation  duly  incorporated 

under  the  laws  of  the  State  of ,  and  engaged  in  the 

business  of  a  commercial  [or,  mercantile]  agency  at 

II.  That  in  pursuance  of  its  business  as  a  commercial 
[or,  mercantile]  agency  it  was  at  the  time  set  forth  in  said 
petition,  and  is  still  hired  and  employed  by  divers  corpora- 
tions, firms  and  individuals  doing  business  in  the  state  of 

,  and  elsewhere,  which  said  corporations,  firms  and 

individuals  were,  and  are,  interested  in  ascertaining  and  be- 
ing informed  of  the  commercial  standing  of  divers  corpora- 
tions, firms  and  individuals  doing  business  in  the  state  of 
,  and  elsewhere,  as  their  agent,  to  seek  for  and  diligent- 
ly inquire  into  the  character,  credit  and  commercial  stand- 
ing of  said  parties  so  engaged  in  business  as  aforesaid,  and 
to  communicate  the  same  forthwith  to  their  said  employers, 
all  of  which  communications  were  to  be  in  strict  confidence, 
and  were  to  be  for  the  sole  use,  benefit  and  information  of 
said  employers. 


Form  2195.]  1532  [Chapter  CXIV. 

III.  That,  in  pursuance  of  said  employment,  the  cefend- 
ant  was  reUably  informed  that  a  judgment  had  been  re- 
covered against  the  plaintiff  [or,  otherwise  state  infoimation 
forming  the  basis  of  the  report],  and  the  defendant,  relying  up- 
on the  truth  of  such  information,  and  believing  it  to  be  true, 
in  good  faith,  and  in  pursuance  of  the  duty  and  contracted 
obligation  to  its  employers,  made  the  publication  in  the 
words  and  figures  fully  and  at  length  set  forth  in  the  com- 
plaint herein,  and  sent  the  same  to  its  said  employers  as  a 
confidential  communication;  that  the  defendant  made  the 
publication  in  entire  good  faith,  and  without  any  malice 
actuating  it  in  the  premises. 

2195.    Answer  in  action  for  slander  of  title. 

I.  Defendant  admits  that  the  plaintiff  caused  to  be 
printed  the  advertisement  set  out  in  the  second  paragraph  of 
plaintiff's  petition,  but  denies  that  the  goods  mentioned  in 
said  advertisement  were  the  property  of  the  plaintiff,  and 
that  the  intended  sale  by  auction  was  in  the  ordinary  course 
of  the  plaintiff's  trade  and  business. 

II.  Defendant  further  admits  that  he  caused  to  be  pri  ted 
and  published  the  "notice"  set  out  in  the  third  paragraph  of 
plaintiff's  petition,  but  denies  that  he  did  so  with  the  mean- 
ing in  such  paragraph  alleged. 

III.  That  before  and  at  the  time  of  the  publication  com- 
plained of  the  plaintiff  unlawfully  detained  from  the  de- 
fendant certain  goods  [describe  them]  the  property  of  the  de- 
fendant. 

IV.  That  the  defendant  was  informed  and  believed  that 
the  plaintiff  intended  to  dispose  of  the  same  [among  other 
goods]  at  the  said  intended  sale  by  auction. 

V.  That  the  defendant  accordingly  prepared  and  pub- 
lished said  "notice"  for  the  purpose  of  warning  all  persons  from 
purchasing  the  said  goods  and  chattels  so  unlawfully  de- 
tained by  the  plaintiff  and  in  the  bona  fide  belief  that  such 
warning  was  necessary  for  the  protection  of  the  defendant's 
own  property,  and  without  any  malice  towards  the  plaintiff. 


CHAPTER  CXV. 


ANSWERS  IN  ACTIONS  FOR  NUISANCE. 


2196.  Denial  of  plaintiff's  title. 

2197.  Denial  of  nuisance. 

2198.  Denial  of  building  or  main- 

taining dam. 

2199.  Admission  of  conducting  bus- 

iness, but  denial  that  the 


same  is  a  nuisance. 

2200.  Prescriptive     right     to     use 

water. 

2201.  License  to  maintain  coal  hole 

in  sidewalk. 


2196.  Denial  of  plaintiff's  title. 

The  defendant  alleges  that  the  plaintiff  was  not  at  the 
times  alleged  in  the  complaint  the  owner  of  [or,  in  possession 
of]  the  premises  described  in  the  complaint,  as  therein  alleged. 

2197.  Denial  of  nuisance. 

The  defendant  denies  that  he  has  at  any  time  maintained 
or  operated  a  slaughter-house  [or  other  business  according  to 
the  charge],  upon  his  said  premises,  as  alleged  in  the  com- 
plaint herein,  or  that  said  premises  have  at  any  time  been 
used  by  any  one  for  the  purpose  of  a  slaughter-house  [or 
other  business]. 

2198.  Denial  of  building  or  maintaining  dam. 

The  defendant  denies  that  he  at  any  time  erected  or 
maintained  the  said  dam,  as  in  said  complaint  alleged. 


2139.    Admission  of  conducting  business,  but  denial  that 
the  same  is  a  nuisance. 

The  defendant  admits  that  at  the  times  named  in  said 
complaint,  he  has  operated  a  planing  mill  [or  tannery,  or 
otherwise  according  to  the  fact],  upon  the  premises  named  in 
the  complaint,  but  defendant  denies  that  the  operation  of 
said  planing  mill  [or  other  factory]  caused  offensive  or  un- 
usual noises,  or  volumes  of  dust  [or  otherwise  specifically 
negative  the  nuisance  charged  in  the  complaint],  as  alleged  in 


Forms  2200,  2201.]  1534  [Chapter  CXV. 

said  complaint,  or  that  the  same  in  any  way  interfered  with 
the  healthful  enjoyment  by  the  plaintiff  or  his  said  family  of 
his  said  premises. 

2200.  Prescriptive  right  to  use  water. 

The  defendant  alleges  that  at  the  times  named  in  the  com- 
plaint he  was  and  still  is  the  owner  and  in  the  possession  of  a 
certain  mill  and  dam  situated  upon  [describing  the  premises], 
and  that  for  more  than  twenty  years  prior  to  the  commence- 
ment of  this  action  this  defendant  and  his  grantors  have  con- 
tinuously and  without  interruption  exercised  the  right  of 
diverting  the  water  of  said  river  by  said  dam,  and  using  said 
water  for  the  operation  of  said  mill,  and  have  thereby  ac- 
quired the  right  to  so  direct  and  use  said  water,  and  that  the 
acts  complained  of  by  the  plaintiff  herein  consist  in  such 
proper  diversion  and  use  of  said  water. 

2201.  License  to  maintain  coal  hole  in  sidewalk  (adapted 

from  Jennings  v.  Van  Schaick,  108  N.  Y.  530; 
15  N.  E.  424). 

The  defendant  admits  that  he  owned  the  premises  de- 
scribed in  the  complaint  in  fee,  and  that  he  caused  to  be 
placed  in  the  sidewalk  in  front  of  said  dwelling  house  a  coal 
hole,  which  was  provided  with  a  cover,  and  guards  in  strict 
accordance  in  all  respects  with  the  requirements  of  a  license 
or  permission  duly  granted  to  the  defendant  by  the  duly 

constituted    municipal   authorities    of   the    city    of    

That  the  said  coal  hole,  with  its  said  cover  and  guards,  was 
placed  in  said  sidewalk  by  the  defendant,  in  an  absolutely 
safe  condition,  and  in  accordance  with  all  the  requirements 
of  said  license,  and  that  said  premises  were  thereupon  and  on 

or  about ,  19 .  . ,  rented  by  the  defendant  to  one  X . . . . 

Y.  . .  .  who  thereupon  tock  entire  possession  of  said  premises, 
and  still  retains  the  same,  the  defendant  retaining  no  con- 
trol or  possession  of  the  same.  That  defendant  at  no  time 
had  an^^  notice  or  knowledge  that  the  said  coal  hole  was  un- 
safe or  out  of  repair,  and  the  defendant  alleges  upon  infor- 
mation and  belief  that  if  the  said  coal  hole  was  at  any  time 
unsafe  or  out  of  repair,  the  same  was  due  to  the  neglect  and 
default  of  said  [tenant],  and  not  to  any  neglect  or  default  on 
the  part  of  this  defendant. 


CHAPTER  CXVI. 


DEFENSES  IN  ACTIONS  OF  TRESPASS. 


2202.  Denial  of  title  and  possession. 

2203.  The  same  as  to  part. 

2204.  Denial  of  trespass  and  taking. 

2205.  License. 

2206.  Prescriptive  right  by  use  for 

twenty  years. 

2207.  Justification   of   trespass   by 

reason  of  defective  fence. 

2208.  Justification     of     rebuilding 

fence. 


2209.  Justification      of      breaking 

plaintiff's  house  by  virtue 
of  search-warrant. 

2210.  Justification  of  trespass  to  re- 

take property. 

2211.  Justification   on   account   of 

impassable  highway. 

2212.  Justification    of    removal    of 

eaves      overhanging      de- 
fendant's land. 


2202.  Denial  of  title  and  possession. 

The  defendant  denies  that  at  the  times  named  in  said  com- 
plaint, the  plaintiff  owned  or  possessed  the  lands  described 
in  said  complaint. 

2203.  The  same  as  to  part. 

I.  The  defendant  alleges  that  at  the  times  named  in  the 
complaint  herein  the  foLowing  described  part  of  the  lands 
named  in  the  complaint  was  not  owned  or  possessed  by  the 
plaintiff,  but  was  [and  still  is]  owned  and  possessed  by  this 
defendant,  viz.  [description]. 

II.  That  the  defendant  at  no  time  entered  on  any  part  of 
the  land  described  in  the  complaint,  except  that  part  thereof 
herein  described. 


2204.  Denial  of  trespass  and  taking. 

The  defendant  denies  that  at  the  times  named  in  the  com- 
plaint, or  at  any  other  time,  he  broke  or  entered  upon  the 
said  premises  of  the  plaintiff,  or  took  or  carried  away  the 
property  alleged  in  the  complaint,  or  any  part  thereof. 

2205.  License. 

I.     That  on  the day  of 19. .  [and  at  various 

times  between  that  day  and  the  ....  day  of ,  19.  .] 


Forms  2206,  2207.]  1536  [Chapter  CXVI. 

the  plaintiff  gave  to  this  defendant  license  to  enter  [etc., 
according  to  the  fact]. 

II.  That  under  and  in  pursuance  of  said  license  of  the 
plaintiff,  the  defendant  did  enter  [etc.,  state  act  of  defendant, 
according  to  the  fact],  which  acts  are  the  same  of  which  the 
plaintiff  complains. 

2206.    Prescriptive  right  by  use  for  twenty  years. 

I.  The  defendant  alleges  that  at  the  place  where  it  is 
alleged  in  the  complaint  that  the  defendant  had  erected  the 
dam  complained  of,  there  had  been  erected  and  maintained 
by  the  defendant  [or,  by  one  M . . . .  N . . . .  and  by  the  de- 
fendant claiming  under  said  M . . . .  N . . . .  ],  for  more  than 
twenty  years  before  the  time  of  the  alleged  grievances,  a 
mill-dam  upon  and  across  the  said  creek,  of  the  same  or 
greater  height,  which  set  back  the  waters  upon  and  flowed 
the  premises,  alleged  in  the  complaint  to  have  been  in  the 
possession  of  the  plaintiff,  to  the  same  or  greater  extent,  and 
caused  the  same  or  greater  obstruction  to  the  flow  of  water 
from  the  said  last-mentioned  mill,  as  was  caused  or  made  by 
means  of  the  said  dam  and  obstruction  of  the  defendant  men- 
tioned in  the  complaint. 

II.  That  said  dam,  and  the  water-power  created  there- 
by, were,  and  had  been,  during  all  the  time  above  mentioned, 
held  and  enjoyed  by  [said  M. . . .  N and]  this  defend- 
ant, claiming  title  thereto  adverse  to  the  plaintiff  and  all 
other  persons;  and  were,  during  all  said  time,  used  for  the 
propulsion  of  a  mill  and  other  machinery,  without  hindrance 
or  molestation  from  the  persons  owning  or  occupying  the 
mill  and  premises  alleged  in  the  complaint  to  have  been  in 
the  possession  of  the  plaintiff. 

W^Ol.    Justification  of  trespass  by  reason  of  defective 
fence. 

I.  That  the  plaintiff  and  defendant  occupy  farms  con- 
tiguous to  each  other,  and  separated  by  a  fence  which  the 
plaintiff  was  bound  to  keep  in  repair. 

II.  That  the  plaintiff,  and  all  other  tenants  or  occupants 
of  the  plaintiff's  farm,  which  is  the  same  premises  men- 
tioned in  the  complaint,  from  a  time  whereof  the  memory  of 
man  is  not  to  the  contrary,  have  repaired  and  ought  to  repair 


Chapter  CXVI.]  1537  [Forms  2208,  2209. 

said  fence;  and  the  plaintiff,  at  and  before  the  times  men- 
tioned in  the  complaint,  ought  to  have  repaired  and  main- 
tained said  fence  so  as  to  prevent  the  cattle  of  defendant  on 
his  farm  from  escaping  onto  the  land  of  the  plaintiff.  [Or 
where  the  obligation  to  maintain  fence  rests  in  agreement,  it 
should  be  alleged  accordingly.] 

III.  That  the  plaintiff  neglected  to  keep  the  fence  in 
repair,  by  means  whereof  the  cattle  of  the  defendant  escaped 
over  the  fence  and  onto  the  premises  of  the  plaintiff;  and 
thereby,  and  without  the  fault  of  the  defendant,  was  com- 
mitted the  supposed  injury  in  the  complaint  alleged. 

IV.  That  the  defendant,  as  soon  as  he  had  notice  of  the 
escape  of  the  cattle,  entered  upon  the  plaintiff's  premises  to, 
and  did,  drive  them  out,  doing  no  unnecessary  damage; 
which  are  the  acts  of  which  the  plaintiff  complains. 

2208.  Justification  of  rebuilding  fence. 

I.  That  the  fence  mentioned  in  the  complaint  was  a 
part  of  the  division-fence  upon  the  line  between  the  lands  of 
the  plaintiff  and  of  the  defendant,  which,  by  a  previous 
agreement  between  them,  the  defendant  was  bound  to 
make,  and  keep  in  repair. 

II.  That  he  took  up  and  removed  the  part  of  said  fence 
which  he  was  so  bound  to  repair,  and  replaced  the  same  with 
a  new  fence  upon  the  said  division  line,  and  with  as  little  in- 
jury as  possible  to  the  plaintiff's  crops,  as  he  had  full  right 
to  do;  which  are  the  acts  complained  of. 

2209.  Justification  of  breaking  plaintiff's  house  by  vir- 

tue of  search-warrant. 

I.     That  at  the  time  mentioned  in  the  complaint,  one 

M. . . .  N. . . .,  being  a  justice  of  the  peace  of  the  town  of 

in  the  county  of ,  issued  a  warrant  in  writing 

under  his  hand  and  seal,  directed  to  any  constable  of  the 

said  town,  reciting,  that  whereas  information  on  oath  had 

been  given  to  him,  the  said  M N ,  a  justice  of  the 

peace  as  aforesaid,  by  one  0 . , . .  P . . . .  of  ....  that  one 

hundred  barrels  of  flour  had  lately  been  feloniously  taken 

and  carried  away  by  Q R .  .  .  .  from  the  wharf,  etc.,  of 

said  0. . . .  P. , . .,  and  that  the  said  one  hundred  barrels  of 

flour,  or  a  part  thereof,  were  then  concealed  in  a  cellar  of 
97 


Form  2210.]  1538  [Chapter  CXVI. 

S . . .  .  T .  .  . . ,  situate  at ;  and  the  said  justice  did,  in 

and  by  the  said  warrant,  in  the  name  of  the  people  of  this 
state,  command  and  authorize  them,  the  said  constables,  or 
any  of  them,  with  proper  assistance,  in  the  daytime,  to  enter 

into  the  cellar  of  the  said  S T.  .  .  .,  situate  at 

and  there  diligently  search  for  the  said  flour;  and  if  the  same, 
or  any  part  thereof,  should  be  found,  then  the  said  con- 
stables were,  in  and  by  the  said  warrant,  likewise  com- 
manded to  bring  the  same  so  found,  together  with  the  said 
S . . . .  T . .  .  . ,  or  the  person  in  whose  custody  the  same  should 
be  found,  before  him,  the  said  justice,  or  some  other  justice 
of  the  peace  of  said  town,  etc.,  to  be  dealt  with  as  the  law 
directs. 

II.  That  said  warrant  was  delivered  to  Y. . . .  Z. . . .,  one 
of  the  defendants,  then  being  one  of  the  constables  of  the 
said  town,  to  be  executed  according  to  law,  by  virtue  of 
which  he  went  to  the  cellar  of  the  said  S .  . . .  T . .  . .  men- 
tioned in  the  warrant,  and  which  was  part  and  parcel  of, 
and  belonging  to,  the  dwelling-house  mentioned  in  the  com- 
plaint, and  there  finding  the  door  thereof  shut  and  fastened, 
did,  in  a  friendly  and  peaceable  manner,  demand  and  re- 
quire that  the  said  door  should  be  opened,  which  was  then 
and  there  refused;  and  that  thereupon  the  said  Y.  . . .  Z. . . ., 
one  of  the  defendants,  in  order  to  execute  the  said  warrant, 
did  break  open  the  said  door,  as  it  was  lawful  for  him  to  do, 
doing  as  little  damage  as  possible,  and  did  search  there  for 
said  flour,  and  took  and  carried  away  therefrom  ninety- 
three  barrels  of  flour,  being  part  of  the  said  one  hundred  bar- 
rels mentioned  in  the  said  warrant,  and  brought  the  same  be- 
fore the  said  justice,  as  he  might  lawfully  do,  which  are  the 
acts  of  which  the  plaintiff  complains. 


2210.    Justification  of  trespass  to  retake  property. 

I.     That  on  or  about  the  ....  day  of ,  19. .,  the 

plaintiff  wrongfully  took  from  the  defendant's  possession  a 
horse  [or  other  property,  describing  the  same],  which  was  then 
and  still  is  the  property  of  the  defendant,  and  placed  the 
same  upon  the  plaintiff's  said  premises,  and  wrongfully  re- 
fused to  deliver  the  same  to  the  defendant,  though  defend- 
ant frequently  demanded  the  return  thereof. 


Chapter  CXVL]  1539  [Forms  2211,  2212. 

II.  That  thereupon  this  defendant  entered  upon  the 
plaintiff's  said  premises,  and  retook  said  horse,  and  drove 
the  same  away,  doing  no  unnecessary  damage,  which  are  the 
acts  complained  of  in  the  plaintiff's  said  complaint. 

2211.  Justification  on  account  of  impassable  highway. 

I.  That  at  the  time  alleged  in  the  complaint  there  was  a 
public  highway  adjoining  plaintiff's  said  premises,  which 
was  then  so  miry  and  out  of  repair  that  it  was  impassable 
for  vehicles  and  horses. 

II.  That  the  defendant  at  said  time  was  lawfully  at- 
tempting to  pass  over  said  highway  with  a  vehicle  and  team 
of  horses,  and  by  reason  of  the  said  condition  thereof  was  un- 
able to  do  so,  whereupon  he  took  down  a  portion  of  plaintiff's 
fence  and  passed  over  a  portion  of  plaintiff's  premises  around 
said  foundrous  portion  of  said  highway,  and  returned  to  said 
highway  as  soon  as  he  conveniently  could,  and  did  no  un- 
necessary damage,  which  acts  are  the  acts  complained  of  by 
the  plaintiff  in  his  said  complaint. 

2212.  Justification  of  removal  of  eaves  overhanging  de- 

fendant's land. 

I.  That  at  the  time  of  the  alleged  trespasses  set  forth  in 
the  complaint  the  defendant  owned  and  was  in  lawful  pos- 
session of  lands  adjoining  the  said  land  of  the  plaintiff; 
that  the  plaintiff  had  built  the  dwelling-house  described  in 
the  complaint  next  to  the  defendant's  lands  and  so  near  to 
the  north  line  thereof  that  the  southerly  eaves  of  the  roof 
of  said  house  extended  over  and  overhung  the  land  of  the 
defendant;  whereupon  the  defendant  removed  the  same  from 
his  said  land  and  placed  the  same  upon  the  plaintiff's  land 
doing  no  unnecessary  damage  in  that  behalf;  and  that  said 
acts  are  the  alleged  trespasses  complained  of  in  the  com- 
plaint. 


CHAPTER  CXVII. 


DEFENSES  IN  ACTIONS  OF  EJECTMENT. 


2213.  Specific  denial  of  title. 

2214.  Title  in  one  defendant,  the 

other  being  in  possession 
under  it, 

2215.  Equitable  counter-claim  for 

specific  performance. 

2216.  That  the  land  which  plaintiff 

seeks  to  recover  was  sold 
by  him  to  defendant,  and 
by  mistake  not  conveyed 
in  the  deed. 

2217.  Adverse  possession,  avoiding 

deed. 

2218.  Adverse    possession    by    de- 

fendant  and   his   grantor, 


under  ten-year  statute. 
(Wisconsin.) 

2219.  The  same,  claiming  under  a 

judgment. 

2220.  The  same,  where  part  only 

has  been  occupied. 

2221.  Adverse     possession     under 

twenty-year  statute.  (Wis- 
consin.) 

2222.  Answer    with    counter-claim 

for  improvements.  (Wis- 
consin.) 

2223.  Defense  of  special  statute  of 

limitations  by  original 
owner  against  tax  title 
claimant.    (Wisconsin.) 


In  ejectment  the  plaintiff  must  recover,  if  at  all,  on  the 
strength  of  his  own  title,  and  under  a  general  denial  the  de- 
fendant may  prove  any  fact  showing  that  plaintifT  is  not  the 
owner,  or  is  not  entitled  to  the  possession  of  the  premises, 
except  where  defendant  has  ousted  the  plaintiff  from  actual 
and  peaceable  possession  of  the  premises.  If  defendant  de- 
pends on  estoppel  or  an  equitable  title,  it  must  be  pleaded 
affirmatively. 

2213.  Specific  denial  of  title.* 

The  defendant  denies  that  the  plaintiff  at  the  time  of  the 
commencement  of  this  action  was  the  owner  or  entitled  to 
the  possession  of  the  premises  described  in  the  complaint. 

2214.  Title  in  one  defendant,  the  other  being  in  posses- 

sion under  it. 

I.     That  before  the  commencement  of  this  action,  that  is 


1  This  form  may  be  used  where 
title  is  alleged  generally  in  the  com- 
plaint; if  the  complaint  set  forth 
the    chain    of   plaintiff's    title   the 


answer  should  specifically  deny  the 
particular  allegation  in  the  chain 
which  is  attacked. 


Chapter  CXVIL]  1541  [Form  2215. 

to  say,  on  the  ....  day  of ,  19.  .,  the  said  defendant 

E . . . .  F . . . .  became  and  was  lawfully  seized  in  fee  of,  all 
and  singular,  the  lands  and  premises  in  the  said  complaint 
described,  with  the  appurtenances,  and  entitled  unto  and 
possessed  of  the  same,  in  his  sole  and  absolute  right;  and  from 
thence,  at  all  times,  down  to  the  time  of  the  commencement 
of  this  action,  have  continued  to  be,  and  still  continue  to  be, 
so  seized  in  fee  of  every  part  and  parcel  thereof,  and  entitled 
unto  and  possessed  of  the  same  in  their  own  sole  and  absolute 
right,  and  that  the  said  other  defendants  [naming  them], 
were,  at  the  time  of  the  commencement  of  this  action,  and 
still  are,  in  the  occupation  of  the  said  lands  and  premises,  or 
of  some  part  or  parts  thereof,  under  the  said  right,  title,  and 
possession  of  the  said  defendant  E. . . .  F.  . . . 

II.  Except  as  above  admitted,  the  defendant  denies  each 
and  every  allegation  in  said  complaint  contained. 

2215.    Equitable  counter-claim  for  specific  performance. 

I.  [Specific  denial  as  in  first  form  in  this  Chapter.] 
Second.     By  way  of  counter-claim,  defendant  alleges: 

II.  That  on  the  ....  day  of ,  19 .  . ,  the  plaintiff  was 

the  owner  of  said  premises,  and  now  has  the  legal  title  there- 
to; but  on  that  day  the  plaintiff,  by  a  contract  in  writing,  of 
which  a  copy  is  annexed  as  a  part  of  this  answer,  marked  Ex- 
hibit A,  sold,  and  agreed  to  convey,  the  same  to  the  de- 
fendant on  the  terms  therein  specified,  and  put  the  defend- 
ant in  possession  thereof  as  purchaser. 

III.  That  the  defendant  duly  performed  all  the  condi- 
tions thereof  on  his  part,  and  on  the   ....  day  of , 

19. .,  tendered  to  the  plaintiff  the  sum  of dollars, 

being  the  full  sum  then  due  the  plaintiff  upon  said  contract 
with  interest  but  plaintiff  then  refused  to  receive  the  same. 

IV.  That  defendant  has  ever  since  remained  and  still  is 
ready  and  willing  to  pay  plaintiff  said  sum,  but  the  plaintiff 
has  at  all  times  refused  to  receive  the  same;  and  this  de- 
fendant now  brings  the  said  sum  of dollars  into 

this  court  to  be  paid  to  the  said  plaintiff,  if  he  will  receive 
the  same. 

WHEREFORE  [demand  for  Judgment  as  in  action  for  spe- 
cific performance.] 


Forms  2216,  2217.]  1542  [Chapter  CXVII. 

2216.  That  the  land  which  plaintiff  seeks  to  recover  was 
sold  by  him  to  defendant,  and  by  mistake  not 
conveyed  in  the  deed. 

I.  [Specific  denial  as  in  first  form  in  this  chapter.] 
Second.     And  by  way  of  counter-claim  the  defendant  al- 
leges : 

II.  That  on  the  ....  day  of ,  19. .,  the  plaintiff 

sold  to  defendant,  and  agreed  to  convey  to  him,  the  follow- 
ing described  premises  [description  of  premises  actually 
sold,  including  the  premises  demanded]. 

III.  That  the  defendant  fully  performed  all  the  condi- 
tions thereof  on  his  part,  and  the  plaintiff  executed  and  de- 
livered to  him  a  deed  as  and  for  a  conveyance  thereof,  but 
which,  by  mistake  in  drawing  the  same,  which  mistake  was 
then  unknown  to  the  parties  to  said  deed,  conveyed  only  the 
following  described  premises  [description]. 

IV.  That  the  defendant,  supposing  and  believing  said 
deed  to  be  pursuant  to  the  contract,  and  without  negligence 
on  his  part,  accepted  it  and  took  possession  of  the  premises 
which  he  had  agreed  for,  and  still  retains  possession  thereof. 

V.  That  the  premises  mentioned  in  the  complaint  are  a 
part  of  the  premises  designated  in  the  contract,  and  the  same 
which  by  said  mistake  was  omitted  to  be  included  in  said 
deed. 

VI.  That  immediately  upon  discovering  said  mistake,  to- 
wit,  on  or  about  the  ....  day  of ,  19.  .,  the  defend- 
ant applied  to  the  plaintiff  to  correct  the  same  by  conveying 
said  omitted  part,  which  he  refused  to  do. 

WHEREFORE,  the  defendant  asks  judgment  that  the 
said  deed  be  reformed  by  correcting  said  mistake  in  the 
boundaries,  so  that  said  deed  shall  express  the  true  intent  and 
meaning  of  the  parties,  and  shall  constitute  a  good  and  valid 
conveyance  of  the  entire  premises  covered  by  said  contract; 
that  the  said  defendant  be  adjudged  the  true  owner  of  the 
said  premises  described  in  the  complaint,  and  that  the  title 
thereof  be  passed  to  and  vested  in  this  defendant,  and  for 
such  other  and  further  relief  as  may  be  just  and  equitable  and 
for  the  costs  and  disbursements  of  this  action. 

2217.    Adverse  possession,  avoiding  deed. 

I.     That  at  the  time  of  the  delivery  of  the  deed  alleged 


Chapter  CXVII.]  1543  [Form  2218. 

in  the  complaint  [or  the  deed  under  which  the  plaintiff 
claims]  the  lands  therein  described  were  in  the  actual  pos- 
session of  one  M. . .  .  N. . . .,  claiming  under  a  title  adverse 
to  that  of  the  grantor  in  said  deed. 

2218.  Adverse  possession  by  defendant  and  his  grantor, 
under  ten  year  statute  (Wis.  Stats.  1913  sees. 
4211-4215). 

I.  [Denial  as  in  first  form  in  this  chapter.] 

And  for  a  second  and  separate  defense  to  this  action,  the 
defendant  alleges: 

II.  That  on  the day  of   ,  19..,  one  E.... 

F. . . .  entered  into  possession  of  said  premises  described  in 
the  plaintiff's  complaint,  under  claim  of  title,  and  exclusive 
of  every  and  any  other  right,  founding  such  claim  upon  *  a 
written  instrument,  as  being  a  conveyance  of  said  premises, 
to-wit  [a  deed  executed  by  G .  .  .  .  H .  . . .  to  him]  on  the  .... 

day  of    ,    19..,   duly  witnessed   and   acknowledged, 

whereby  the  said  G . . . .  H . . . .  granted  and  conveyed  in  fee 
simple  to  the  said  E . . . .  F . . . .  his  heirs  and  assigns  forever, 
the  said  premises,  said  deed  containing  the  usual  full  cove- 
nants, which  said  deed  was  duly  recorded  in  the  office  of  the 

register  of  deeds  for    county,  on  the    ....   day  of 

,  19. .,  at  ....  o'clock  in  the  ....  noon,  on  page  .... 

of  volume  ....  of  the  record  of  deeds,  and  that  thereafter 

and  on  the  ....  day  of ,  19 . . ,  said  E . . . .  F . . . .  by 

deed  duly  conveyed  said  premises  to  this  defendant. 

III.  That  ever  since  said  entry  by  the  said  E .  .  ,  .  F , 

and  for  more  than  ten  years  immediately  preceding  the  com- 
mencement of  this  action,  this  defendant,  as  the  purchaser 
and  grantee  of  said  premises  from  said  E . .  . .  F . . .  . ,  and  the 
said  E . . . .  F .  .  .  .  before  him,  have  been  in  the  actual,  con- 
tinued occupation  and  possession  of  said  premises,  adverse  to, 
and  exclusive  of,  every  other  right,  under  claim  of  title 
founded  upon  said  deed  to  the  said  E. . . .  F. . . .  above  de- 
scribed. 

IV.  That  during  the  whole  of  said  time,  since  said  entry, 
the  said  premises  [and  the  whole  thereof]  have  been  usually 
cultivated  and  improved  [and  have  been  protected  by  a  sub- 
stantial enclosure]  [or  such  other  allegations  as  show  a  pos- 
session and  occupation  under  the  proper  statute]. 


Forms  2219-2221.]  1544  [Chapter  CXVII. 

2219.  The  same,  claiming  under  a  judgment. 

I.  [Same  as  in  last  preceding  form.] 

II.  [Same  as  in  last  preceding  form  to  the  *  after  which 

substitute  as  follows]:  a  decree  or  judgment  of  the   

court  of county,  in  an  action  wherein  L . . . .  M . . . . 

was  plaintiff  and  N. . . .  0 was  defendant,  which  judg- 
ment was  duly  rendered  on  the  ....  day  of ,  19. ., 

and  on  said  last-named  day  duly  entered  in  the  office  of  the 
clerk  of  said  court,  and  by  which  judgment  it  was  determined 
and  adjudged  [here  state  the  relief  granted  respecting  the  land 
in  question]. 

Ill  and  IV.  [Same  as  in  last  preceding  fornix  but  insert- 
ing the  word  "judgment,"  instead  of  "deed."] 

2220.  The  same,  where  part  only  has  been  occupied. 

I  and  II.  [Same  as  in  either  of  two  preceding  forms  alleg- 
ing, however,  the  entry  in  allegation  II  to  have  been  upon  a 
part  of  said  premises,  only.] 

III.  That  ever  since  said  entry  by  the  said  E F. . . . 

and  for  more  than  ten  years  immediately  preceding  the  com- 
mencement of  this  action,  this  defendant  as  the  purchaser 
and  grantee  of  said  premises  from  the  said  E....  F...., 
and  the  said  E . . . .  F . . . .  before  him,  have  been  in  the 
actual,  continued  occupation  and  possession  of  a  part  of  said 
premises  adverse  to  and  exclusive  of  every  other  right  under 
claim  of  title  founded  upon  said  deed  [or  judgment]  to  the 

said  E F ,  above  described,  and  that  the  part  of 

said  premises  so  adversely  occupied  is  described  as  follows 
[insert  description]. 

IV.  [Same  is  in  last  preceding  forms.] 

2221.  Adverse  possession  under  twenty  year  statute 

(Wis.  Stats.  1913  sees.  4207-4213). 

I.  [Denial  as  in  first  form  in  this  chapter.] 

II.  And  for  a  second  and  separate  defense,  the  de- 
fendant alleges  that  neither  the  plaintiff  above  named,  nor 
his  ancestor,  nor  predecessor,  nor  grantor,  was  seized  or  pos- 
sessed of  the  said  premises  described  in  said  complaint,  nor 
any  part  thereof,  within  twenty  years  before  the  commence- 
ment of  this  action. 


Chapter  CXVIL]  1545  [Form  2222. 

III.  That  the  defendant  [his  ancestors,  predecessors,  and 
grantors]  have  held  the  said  premises  and  been  in  the  actual 
continued  occupation  and  possession  thereof,  and  of  the 
whole  thereof,  exclusive  of  every  and  any  other  right,  for 
more  than  twenty  years,  immediately  preceding  the  com- 
mencement of  this  action. 

IV.  That  during  the  twenty  years  last  before  the  com- 
mencement of  this  action,  said  premises  and  the  whole 
thereof,  have  been  protected  by  a  substantial  enclosure,  and 
have  been  usually  cultivated  and  improved  [or  such  other 
allegations  of  possession  as  are  made  necessary  by  the  proper 
statute]. 

2222.    Answer   with    counter-claim   for   improvements 
(Wis.  Stats.  1898  sees.  3096,  3097).^ 

I.  [Denial  as  in  first  form  in  this  chapter.] 

II.  [Affirmative  defense  if  any,  as  in  preceding  forms.] 
By  way  of  counter-claim  herein,  the  defendant  alleges: 

III.  That  he  has  been  in  possession  of  the  premises,  de- 
scribed in  the  complaint,   since  the    ....    day  of    , 

19..,  holding  adversely  to  said  plaintiff  by  title  founded 
upon  a  written  instrument,  to-wit  [here  describe  the  deed  or 
instrument  fully  according  to  its  legal  effect]. 

IV.  That  under  said  deed  the  defendant  entered  into 
exclusive  possession  of  said  premises,  adversely  asserting 
title  thereto  in  good  faith,  founded  upon  said  deed,  and  in  the 
full  belief  that  the  said  deed  conveyed  to  him  a  good  title; 

*  In     Minnesota     this     defense  In  the  other  states  covered  by 

should   also   state   that   defendant  this  work  the  subject  is  governed  by 

gave  a  valuable  consideration  for  the  following  statutes:  Ariz.  R.  S. 

the  land  and  the  amount  of  such  1913    sec.    695-708;    Ark.    Dig.    of 

consideration,  if  defendant's  claim  Stats.  1904  sees.  5056,  5058;  Cal.  C. 

be  under  an  official  deed,  as  well  as  C.  P.  1906  sees.  322,  325,  741;  Colo, 

the  facts  that  such  deed  is  regular  Code  Ann.   1911   sees.  4084-4093; 

on  its  face,  and  that  defendant  had  Idaho  Rev.  Codes  1908  sees.  4039- 

no  actual  notice  of  any  defects  in-  4043,  4541;  Mont.  Rev.  Codes  1907 

validating  the  same.     Minn.  Gen.  sees.  6435-6439;  Mo.R  S.  1909  sees. 

Stats.  1913  sec.  7696  and  8070  el  1879-1886;  2401;  Okla.  Comp.  Laws 

seq.     In  North  and  South  Dakota  1909   sec.   6128   et  seq;  Tex.    Civ. 

an  allegation  should  be  added  stat-  Stats.  Ann.  1913  art.  5672  et  seq; 

ing  the  value  of  the  land  aside  from  Ulah  Comp.  Laws  1907  sec.  2860 

the  improvements  thereon.  N.  Dak.  et  seq;  Wash.  Rem.  and  Bal.  Code 

Rev.   Codes  1905  sec.  7526,  7527;  1910   sec.    156;   786   et  seq;  Wyo. 

S.  Dak.  C  C.  P.  1908  sees.  681, 682.  Comp.  Stats.  1910  sec.  4971  d  seq. 


Form  2223.]  1546  [Chapter  CXVII. 

and  still  continues  so  to  hold  and  possess  said  premises, 
claiming  title  thereto  in  good  faith  under  said  deed,  and  not 
otherwise. 

V.  That  the  defendant,  while  so  in  possession  of  said 
premises,  holding  adversely  and  asserting  title  in  good  faith, 
founded  upon  said  deed,  has  made  permanent  and  valuable 
improvements  thereon,  to-wit  [here  state  particularly  im- 
provements madel,  said  improvements  are  of  the  value  of 
dollars. 

VI.  That  during  the  time  last  aforesaid  the  defendant  has 
paid  the  taxes  assessed  in  said  premises  for  the  years  19 . . 
and  19. .,  and  that  the  amounts  so  paid,  and  the  dates  of 
payment  are  as  follows  [state  amounts  and  dates]. 

WHEREFORE  defendant  demands  judgment  that  the 
complaint  herein  be  dismissed  with  costs,  or  that  if  plaintiff 
be  adjudged  entitled  to  recover  possession  of  said  premises 
that  the  defendant's  said  claim  for  improvements  and  taxes 
paid  be  tried,  and  that  he  recover  the  same,  as  provided  by 
law,  and  for  such  other  judgment  as  may  be  just  and  equit- 
able. 

2223.  Defense  of  special  statute  of  limitations  by  original 
owner  against  tax  title  claimant  (Wis.  Stats. 
1913  sec.  1187). 

I.  [Denial  as  in  first  form  in  this  chapter.] 

And  for  a  second  and  separate  defense  the  defendant  al- 
leges: 

II.  That  the  plaintiff  claims  title  and  right  of  possession 
of  said  premises  under  a  certain  pretended  tax  deed,  by  which 
said  premises  were  pretended  to  be  conveyed  to  him  by  the 

county  of    for  the  non-payment  of  taxes  thereon, 

which  deed  bears  date,  and  was  in  fact  executed  on  the  .... 

day  of ,  19. .,  and  recorded  in  the  office  of  the  register 

of  deeds  of  said  county  of on  the  ....  day  of , 

19.  .,  more  than  three  years  before  the  commencement  of 
this  action. 

III.  That  the  said  plaintiff  has  not  been  in  the  actual 
possession  of  said  premises  described  in  the  complaint,  nor 
any  part  thereof,  for  three  successive  years  during  the  five 
years  next  after  the  recording  of  such  deed. 


'Chapter  CXVIL]  1547  [Form  2223. 

IV.  That  the  defendant  has  been  the  owner  of  said  prem- 
ises ever  since  and  for  a  long  time  prior  to  the  execution  of 
said  deed  under  which  the  plaintiff  claims,  and  he,  the  de- 
fendant, has  been  during  all  of  such  time  in  the  [actual  and] 
continued  possession  of  said  premises  as  such  owner. 


CHAPTER  CXVm. 

DEFENSES   IN  ACTIONS  AGAINST  OFFICERS   OR 
STOCKHOLDERS  OF  CORPORATIONS. 


2224.  Denial  that  defendant  was  an 
officer  or  stockholder  of 
corporation. 


2225.  Denial  of  recovery  of  judg 
ment  against  corporation. 


2224.  Denial  that  defendant  was  an  officer  or  stockholder 

of  corporation. 

The  defendant  denies  that  at  the  times  named  in  the  com- 
plaint, or  at  any  time  since  the  ....  day  of ,  19, ., 

he  was  a  director  [or  stockholder]  in  the  [name  corporation], 
or  has  in  any  way  managed  or  taken  part  in  the  management 
of  the  affairs  of  said  corporation. 

2225.  Denial  of  recovery  of  judgment  against  corpora- 

tion. 

The  defendant  alleges  that  he  has  no  knowledge  or  in- 
formation sufficient  to  form  a  belief  that  the  plaintiff  re- 
covered against  the  company  the  judgment  mentioned  in  the 
complaint;  or  that  there  existed  any  indebtedness  of  said 
company  to  said  plaintifT  for  the  amount  of  said  alleged 
judgment,  or  any  part  thereof,  or  that  an  execution  was 
issued  on  said  judgment,  or  was  returned  unsatisfied,  or 
that  said  judgment,  or  any  part  thereof,  remains  unsatisfied. 


CHAPTER  CXIX. 

DEFENSES  IN  ACTIONS  OF  DIVORCE. 


2226.  General  denial. 

2227.  Denial  of  adultery. 

2228.  Condonation. 


2226.    General  denial. 


2229.  Counter-claim  for  divorce  for 

plaintiff's  adultery. 

2230.  Adultery     committed     with 

plaintiff's  consent. 


The  defendant  admits  the  marriage  alleged  in  the  com- 
plaint, and  denies  each  and  every  other  allegation  of  said 
complaint. 

2227.  Denial  of  adultery. 

The  defendant  denies  that  at  the  time  named  in  the  com- 
plaint, or  at  any  other  time,  he  committed  adultery  with  the 
person  named  in  said  complaint  [or  persons  named  in  said 
complaint,  or  with  either  of  them,  or  with  any  other  person]. 

2228.  Condonation. 

I.  The  defendant  alleges  that  after  the  times  mentioned 
in  the  complaint,  and  before  this  action,  the  plaintiff  being 
informed  as  to  the  matters  therein  alleged,  freely  condoned 
said  alleged  adultery,  and  forgave  the  defendant  therefor 
[and  freely  cohabited  with  him]. 

II.  That  ever  since  such  condonation  the  defendant  has 
been  a  faithful  husband  to  the  plaintifT,  and  has  constantly 
treated  her  with  conjugal  kindness. 

2229.  Counter-claim  for  divorce  for  plaintiff's  adultery. 

Second.  For  a  second  defense  and  a  counter-claim  the 
defendant  alleges  [proceeding  as  in  forms  given  in  Chapter 
LXXVIII]. 

WHEREFORE,  the  defendant  demands  judgment  [etc., 
as  in  said  forms]. 


Form  2230.]  1550  [Chapter  CXIX. 

2230.     Adultery  committed  with  plaintiff's  consent. 

That  the  act  of  adultery  charged  in  the  complaint,  if  com- 
mitted at  all,  was  committed  with  the  knowledge,  consent 
and  procurement  of  the  plaintiff. 


CHAPTER  CXX. 

DEFENSES  IN  VARIOUS  ACTIONS. 


2231.  Denial  of  execution  in  cred- 

itors' action. 

2232.  Denial  of  residence  in  cred- 

itors' action. 

2233.  That  defendant  has  assets  in 

creditors'  action. 

2234.  Denial  of  possession  of  assets 

belonging     to     judgment 
debtor  in  creditor's  action. 

2235.  Denial  that  conveyance  was 

fraudulent  in  creditors'  ac- 
tion. 

2236.  Denial  of  errors  in  account 

stated. 

2237.  Denial  of  payment  or  tender 

in  action  for  specific  per- 
formance. 

2238.  Denial  of  readiness  to  convey 

in  action  for  specific  per- 
formance. 

2239.  Denial  of  title  in  action  for 

specific  performance. 

2240.  Denial  of  mortgage,  in  mort- 

gage foreclosure. 

2241.  Extension   of   time   of   pay- 

ment,   in    mortgage   fore- 
closure. 

2242.  Denial    of    having    assumed 

mortgage  in  mortgage  fore- 
closure. 


2243.  That  defendant,  having  an 

equity  of  redemption  in  a 
part  of  the  premises,  is  en- 
titled to  have  the  residue 
sold  first,  in  mortgage 
foreclosure. 

2244.  Non-joinder     of     owner     of 

equity  of  redemption,  in 
mortgage  foreclosure. 

2245.  Ratification  by  infant  after 

coming  of  age. 

2246.  General  answer  of  infant  or 

lunatic,  in  foreclosure,  par- 
tition, etc. 

2247.  By  trustee,  that  he  declines 

to  act. 

2248.  The    same,    with    denial    of 

having  acted. 

2249.  That   defendant   is    a   bona 

fide  purchaser  without 
notice  of  incumbrances. 

2250.  Disclaimer. 

2251.  That  the  term  is  not  expired, 

in  action  to  dissolve  part- 
nership. 

2252.  Overdrawing  done  by  plain- 

tiff's assent,  in  action  to 
dissolve  partnership. 


2231.  Denial  of  execution  in  creditors'  action. 

The  defendant  denies  that  any  execution  upon  the  said 
judgment  was  ever  returned  unsatisfied  in  whole  or  in  part 
[or  was  ever  issued  to  the  said  county]  before  this  action. 

2232.  Denial  of  residence  in  creditors'  action. 

The  defendant  denies  that  he  was,  at  the  time  mentioned 
in  the  complaint,  a  resident  of  the  county  to  which  execu- 


Forms  2233-2237.]  1552  [Chapter  CXX. 

tion  is  alleged  to  have  been  issued;  and  alleges  that  he  was  a 

resident  of county,  to  which  no  execution  was  issued 

before  this  action. 

2233.  That  defendant  has  assets  in  creditors'  action. 

The  defendant  alleges  that  the  defendant  [the  judgment- 
debtor]  has,  and  at  the  commencement  of  this  action  had,  real 
property  [or  personal  property,  or  both],  in  the  county  of 

in  this  state,  liable  to  execution,  and  sufficient  in 

value  to  satisfy  said  judgment,  to-wit  [designating  what]. 

2234.  Denial  of  possession  of  assets  belonging  to  judg- 

ment-debtor in  creditors'  action. 

The  defendant  denies  that  he  had,  at  the  commencement 
of  this  action,  or  had  at  any  time  since,  property  of  the  de- 
fendant [debtor]  in  his  possession  or  under  his  control,  as 
alleged. 

2235.  Denial  that  conveyance  was  fraudulent  in  credit- 

ors' action. 

The  defendant  alleges  that  upon  the  making  of  the  al- 
leged assignment  [or  mortgage]  there  was  an  actual  and  con- 
tinued change  of  the  possession  of  the  assigned  [or  mort- 
gaged] property  from  the  said  [deblor]  to  the  [transferees] 
who,  immediately  after  the  execution  of  the  assignment  [or 
mortgage]  took  actual  and  exclusive  possession  of  the  prop- 
erty; and  that  it  has  at  all  times  since  the  assignment  [or 
mortgage]  remained  in  their  exclusive  possession  and  control. 

2236.  Denial  of  errors  in  account  stated. 

The  defendant  alleges  that  the  account  stated,  which  is 
mentioned  in  the  complaint,  is  true  and  just  [except  as  to 
here  specifying  any  admitted  error]  and  that  there  are  no  er- 
rors or  mistakes  in  the  stating  of  the  said  account,  as  al- 
leged [except  as  aforesaid]. 

2237.  Denial  of  pajnnent  or  tender  in  action  for  specific 

performance. 

The  defendant  denies  that  the  plaintiff,  at  the  time 
named  in  said  complaint  or  at  any  other  time,  paid  or  ten- 


Chapter  CXX.]  1553  [Forms  2238-2241. 

dered  to  the  defendant  any  part  of  [or  said  second  instalment 
of]  the  said  purchase-money  agreed. 

2238.  Denial  of  readiness  to  convey  in  action  for  specific 

performance. 

The  defendant  denies  that  the  plaintiff  was  at  any  time 
ready  and  willing  to  convey  the  premises,  as  alleged;  but 
[here  state  refusal  or  inability,  according  to  the  fad,  as  it  would 
be  stated  in  an  action  for  damages  for  the  breach]. 

2239.  Denial  of  title  in  action  for  specific  performance. 

The  defendant  alleges  that  the  plaintiff  was  not,  and  is 
not,  owner  in  fee  [or  otherwise,  according  to  the  complaint]  of 
the  said  premises,  and  could  not,  nor  can  he  make  to  the  de- 
fendant a  good  and  sufficient  title  thereto,  free  and  clear  of 
incumbrances  [or  otherwise,  according  to  the  complaint]; 
but  on  the  contrary  [setting  forth  incumbrances,  if  any]. 

2240.  Denial  of  mortgage,  in  mortgage  foreclosure. 

Defendant  denies  that  he  has  knowledge  or  information 
sufficient  to  form  a  belief  as  to  whether  the  defendant 
[mortgagor]  ever  executed  the  bond  and  mortgage  described 
in  the  complaint,  or  whether  the  defendant  [mortgagee] 
ever  assigned  said  supposed  bond  and  mortgage  to  the 
plaintiff,  or  whether  he  is  now  the  lawful  owner  or  holder 
thereof. 

2241.  Extension  of  time  of  payment,  in  mortgage  fore- 

closure. 

The  defendant  denies  that  any  sum  was  due  the  plaintiff 
at  the  time  of  the  commencement  of  this  action  or  is  now  due 
upon  the  note  and  mortgage  set  forth  in  the  complaint,  and 

on  the  contrary  thereof  alleges  that  on  the  ....  day  of , 

19. .,  the  said  plaintiff,  for  a  valuable  consideration  to  him 
paid  by  the  defendant,  contracted  and  agreed  with  the  de- 
fendant that  the  time  for  the  payment  of  the  principal  sum 
named  in  said  note  should  be  extended  from  [date]  until 
[date  of  extension]  which  said  agreement  of  extension  is  still 

in  force. 
98 


Form  2242.]  1554  [Chapter  CXX. 

2242.    Denial  of  having  assumed  mortgage  in  mortgage 
foreclosure. 

I.  The  defendant  denies  that  the  defendant  [mortgagor] 
ever  executed  or  delivered  any  deed  or  conveyance  of  the 
premises  described  in  the  complaint  to  this  defendant 
[except  as  hereinafter  admitted],  or  that  this  defendant  ever 
accepted  said  supposed  deed,  or  entered  into  possession  of 
said  premises,  or  ever  in  any  manner  whatever  assumed  or 
agreed  to  pay  the  mortgage  set  forth  in  the  complaint. 

II.  The  defendant  alleges  that  the  defendant  [mort- 
gagor] being  indebted  to  this  defendant  in  about  the  sum  of 
dollars  executed  at and  procured  to  be  re- 
corded in  the  month  of ,  19. .,  without  the  knowledge 

or  assent  of  this  defendant,  a  deed  of  the  premises  described 
in  the  complaint,  which  deed  is  recorded  in  book   ....   of 

conveyances,  page  . . . .,  in  the  office  of  the of  the 

county  of That  said  deed  never  was  delivered  to  this 

defendant,  nor  was  any  copy  thereof,  nor  was  it  ever  accepted 
by  him,  nor  did  he  ever  execute  it,  or  agree  or  consent  to  it  in 
any  manner  whatsoever,  nor  did  he  ever,  in  any  manner,  by 
said  deed  or  otherwise,  agree  or  assume  to  pay  the  incum- 
brances on  said  property,  or  any  of  them,  nor  was  he  cogni- 
zant of  the  terms,  or  character,  or  contents  of  said  deed, 
until  the  day  of ,  19.  . ;  and  that  he  then  re- 
jected and  refused  to  accept  said  deed. 

III.  Defendant  further  says,  that  said  deed  was  executed 
by  said  [mortgagor]  to  this  defendant,  as  he  is  informed  by 
said  [mortgagor]  and  believes,  for  the  purpose  of  securing  said 
indebtedness  of  said  [mortgagor]  to  this  defendant;  that  there 
was  no  consideration  whatsoever  for  the  insertion  in  said 
deed,  of  the  clause  providing  that  this  defendant  assumed 
and  agreed  to  pay  the  incumbrances  therein  specified,  or 
that  he  took  subject  thereto;  that  said  clause  was  inserted  by 
mistake;  that  immediately  upon  this  defendant's  being 
cognizant  of  said  deed,  and  before  the  com.mencement  of 
this  action,  being  on  the day  of ,  19. .,  he  pro- 
cured from  the  defendant  [mortgagor]  and  the  defendant 
[mortgagor]  executed  to  this  defendant,  under  his  hand  and 
seal,  a  release,  whereby  he  discharged  and  released  him  from 
any  assumption  of  said  mortgage,  which  said  release  was 


Chapter  CXX.]  1555  [Forms  2243-2245. 

duly  recorded  in  book  ....  of  Conveyances,  page   ....  in 
the  office  of  said on  the  ....  day  of 19 . . 

2243.  That  defendant,  having  an  equity  of  redemption  in 

a  part  of  the  premises,  is  entitled  to  have  the 
residue  sold  first,  in  mortgage  foreclosure. 

I.  That  after  the  making  of  the  mortgage  mentioned  in 
the  complaint,  and  which  the  plaintiff  seeks  to  foreclose,  said 
[mortgagor]  conveyed  to  this  defendant  a  part  of  the  mort- 
gaged premises  for  a  valuable  consideration,  by  deed  bear- 
ing date  on  the  ....  day  of ,  19. .,  and  recorded  on 

the day  of ,  19. .,  in  book  ....  of  Conveyances, 

page  . . . .,  in  the  office  of  the of  the  county  of 

which  said  portion  of  the  mortgaged  premises  are  described 
as  follows  [copy  of  description]. 

II.  [That  after  the  aforesaid  conveyance,  the  said  [mort- 
gagor] conveyed  the  residue  of  said  premises  to  the  defend- 
ant W....  X....] 

WHEREFORE  the  defendant  demands  that  if  a  fore- 
closure be  adjudged,  all  of  said  premises  not  so  conveyed  to 
this  defendant  be  sold  first;  and  that  the  premises  so  con- 
veyed to  this  defendant  be  not  sold,  unless  a  sale  thereof 
should  be  necessary  to  satisfy  deficiency  arising  after  the 
sale  of  such  residue. 

2244.  Non- joinder  of  owner  of  equity  of  redemption,  in 

mortgage  foreclosure. 

I.  That  after  the  making  of  the  mortgage  in  the  com- 
plaint described,  and  before  this  action,  the  defendant  X. ...» 
being  seized  of  the  premises,  by  his  deed  under  his  hand  and 

seal,  dated  on  the  ....  day  of ,  19. .,  duly  conveyed 

the  same  to  one  M. . . .  N. .  . .,  subject  to  said  mortgage. 

II.  That  said  M N is  still  living  at    , 

and  is  now  the  owner  of  the  equity  of  redemption  in  said 
premises. 

2245.  Ratification  by  infant  after  coming  of  age. 

I.  That  said  [infant]  after  the  making  of  said  deed,  at- 
tained the  age  of  twenty-one  years. 

II.  That  thereupon  [or  afterwards],  and  on  or  about  the 
, , , ,  day  of ,  19 . .,  and  before  this  action,  he  assented 


Forms  2246-2249.]  1556  [Chapter  CXX. 

to,  and  ratified  and  confirmed  the  same,  with  full  knowledge 
of  the  facts. 

2246.  General  answer  of  infant  or  lunatic,  in  foreclosure, 

partition,  etc. 

This  defendant,  answering  by  his  said  guardian,  says  that 
he  is  a  stranger  to  all  and  singular  the  matters  and  things  in 
the  complaint  in  this  action  set  forth,  and  that  he  is  an  in- 
fant under  the  age  of  twenty-one  years  [or,  a  lunatic  duly  ad- 
judged to  be  such  by on  the  ....  day  of 19 . .] 

and  claims  such  interest  in  the  premises  as  he  is  entitled  to; 
and  he  submits  his  rights  and  interests  in  the  matters  in 
question  in  this  action  to  the  protection  of  the  court. 

2247.  By  trustee,  that  he  declines  to  act. 

Admits  that  he  declines  to  act  in  the  trusts  of  said  settle- 
ment, and  is  desirous  of  being  discharged  therefrom.  De- 
fendant further  says,  that  he  is  ready  to  convey  and  release 
said  trust-premises  to  the  plaintiff,  and  to  such  new  trustee 
as  may  be  appointed  by  the  court,  on  being  indemnified  in 
that  behalf,  and  paid  all  his  costs  and  expenses. 

2248.  The  same,  with  denial  of  having  acted. 

I.  The  defendant,  admitting  that  said  [testator]  left  the 
will  described  in  the  complaint,  says  that  he  absolutely  re- 
fused to  accept  or  intermeddle  with  said  trust,  or  in  any  way 
concern  himself  therein. 

IT.  He  further  says  that  he  never  entered  on  said  trust- 
estate,  or  received  any  of  the  rents  and  profits  thereof. 

III.  That  M....   N who  has  received  said  rents 

and  profits,  had  no  power  or  authority  from  this  defendant 
to  do  so,  and  never  accounted  to  this  defendant  therefor. 

IV.  That  this  defendant  is  desirous  and  ready  to  be  dis- 
charged from  said  trust,  and  to  do  any  act  the  court  shall 
direct  for  that  purpose,  he  being  indemnified  and  having  his 
costs. 

2249.  That  defendant  is  a  bona  fide  purchaser  without 

notice  of  incumbrances. 

I.     That  on  the day  of ,  19. .,  M N 

was,  or  pretended  to  be,  the  owner  in  fee-simple  of  the  lands 


Chapter  CXX.]  1557  [Forms  2250, 2251. 

and  premises  described  in  the  complaint,  free  from  all  in- 
cumbrances; and  he  then  was  in  the  actual  possession  thereof. 

II.  That  the  defendant,  believing  the  said  M . . . .  N . . . . 
to  be  the  owner  of  said  premises,  on  that  day  agreed  with  him 

for  the  purchase  thereof  in  fee-simple,  for  the  price  of 

dollars;  whereupon  the  said  M....  N....  conveyed  the 
said  premises  to  this  defendant,  by  his  deed,  dated  on  the 

....  day  of ,  19. .,  which  deed  contained  a  covenant 

on  the  part  of  said  M . . . .  N . . . .  that  he  was  absolutely 
seized  of  said  premises,  and  that  the  same  were  free  from  all 
incumbrances. 

III.  That  said  sum  of dollars  was  actually  paid 

by  this  defendant  to  said  M . . . .  N . . . .  [at  the  time  of  the 
date  of  said  deed]. 

IV.  That  this  defendant  had  not,  at  or  before  the  time  of 
the  said  conveyance,  or  of  the  said  payment  of  the  pur- 
chase-money, any  notice  whatsoever,  either  express  or  im- 
plied, of  the  said  mortgage  now  claimed  by  the  plaintiff,  or 
of  any  other  incumbrance  whatsoever  that  affected  the  said 
premises. 

V.  That  at  the  time  of  said  conveyance  and  payment  the 
said  mortgage  had  not  been  recorded  in  the  office  of  the  .... 

for  the  county  of [being  the  county  wherein  said  lands 

are  situated],  nor  was  the  same  recorded  until  the  ....  day 

of 19. .  [or,  nor  has  the  same  ever  been  recorded  in 

said  ofTice]. 

2250.  Disclaimer. 

The  defendant  alleges  that  he  disclaims  all  right,  title, 
and  claim  to  any  estate  of  inheritance  or  of  freehold  in  the 
premises  described. 

2251.  That  the  term  is  not  expired,  in  action  to  dissolve 

partnership. 

Denies  that  the  partnership  between  him  and  the  plaintiff 
set  forth  in  the  complaint,  was  upon  the  terms,  and  accord- 
ing to  the  stipulations,  agreements,  and  covenants  alleged 
by  plaintiff  in  his  said  complaint;  but,  on  the  contrary  there- 
of, defendant  alleges  and  states  that  said  partnership  was 
formed,  and  entered  into,  and  carried  on,  under  and  in  pur- 
suance of  a  written  agreement  and  articles  of  copartnership 
6 


Form  2252.]  1558  [Chapter  CXX. 

between  him  and  said  plaintiff;  a  copy  of  which  is  hereto  an- 
nexed, and  forms  part  of  this  answer,  showing  that  the  time 
for  the  continuance  of  said  copartnership  is  yet  unexpired, 
which  agreement  has  never  been  altered  or  varied  in  writ- 
ing or  by  parol;  and  that  the  copartnership  formed  and  car- 
ried on  in  pursuance  thereof,  is  the  same  set  forth  and  alleged 
in  said  complaint. 

2252.    Overdrawing  done  by  plaintiff's  assent,  in  action 
to  dissolve  partnership. 

Denies  each  and  every  allegation  set  forth  in  the  [third 
separate  cause  of  action  in]  said  complaint,  relative  to  the 
alleged  misconduct  of  defendant,  and  his  alleged  acts  and 
doings  in  the  management  of  the  said  partnership  business, 
except  the  allegation  of  his  drawing  out  from  the  funds  of 
said   copartnership   more   than   his   portion   of  the   profits 

thereof,  to-wit,  the  sum  of dollars — and  investing 

the  same  in,  etc.,  etc.;  and  as  to  such  allegation,  defendant 
alleges  and  states  that  it  was  done  with  the  full  knowledge 
of  said  plaintiff,  and  with  his  approbation  and  express 
assent. 


CHAPTER  OXXI. 

COUNTER-CLAIMS;  FORMAL  PARTS. 

2253.  General  form.  I  2254.  Defenses  and  counter-claims, 

I  pleaded  together. 

2253.  General  form. 

The  defendant  [naming  him,  if  he  is  one  of  several,  answer- 
ing separately],  by  M . . . .  N . . . . ,  his  attorney,  answering 
the  complaint  herein,  for  a  counter-claim  [to  the  first  cause 
of  action]  alleges: 

That  on  the  ....  day  of ,  19 . .,  and  before  the  com- 
mencement of  this  action,  the  plaintiff  became,  and  still  is, 
indebted  to  this  defendant  upon  an  account  [etc.,  or  other- 
wise, stating  cause  of  action  as  if  in  a  complaint]. 

WHEREFORE,  etc.  [demand  for  judgment  as  in  a  com- 
plaint]. 

2254.  Defenses  and  counter-claims,  pleaded  together. 

The  defendant  [naming  him,  if  he  is  one  of  several,  answer- 
ing separately],  by  M N his  attorney,  answering 

the  complaint  herein: 

First.    For  a  first  defense  thereto  alleges,  etc. 

Second.  For  a  second  defense,  said  defendant  alleges, 
etc.,  etc. 

Third.  For  a  counter-claim  thereto,  said  defendant  al- 
leges [here  set  forth  cause  of  action  as  in  a  complaint]. 

Fourth.  For  a  second  counter-claim  thereto,  said  de- 
fendant alleges,  etc. 

WHEREFORE,  etc.  [demand  for  judgment  as  in  a  com- 
plaint]. 


CHAPTER  CXXII. 


REPLIES;  FORMAL  PARTS. 


2255.  General  form.    (Wisconsin.) 

2256.  The  same;  interposing  both 

denial  and  new  matter  in 
defense.    (Wisconsin.) 

2257.  Reply  of  statute  of  limita- 

tions.    (Wisconsin.) 

2258.  Reply  in  states  where  new 

defensive  matter  must  be 


replied  to  as  well  as  coun- 
ter-claims. 

2259.  The  same,  where  answer  con- 

tains both  denials  and  new 
matter. 

2260.  The    same,    where    answer 

contains  both  a  defense  and 
a  counter-claim. 


2255.  General  form  (Wis.  Stats.  1913  sec.  2661). 

The  plaintiff,  replying  to  the  counter-claim  contained  in 
the  answer  of  the  defendant  [or,  the  first,  or  other  counter- 
claim contained  in  the  answer  of  the  defendant],  alleges  [or 
denies,  etc.,  continuing  as  in  an  answer  to  a  complaint]. 

2256.  The  same;  interposing  both  denial  and  new  matter 

in  defense  (Wisconsin). 

The  plaintiff,  replying  to  the  answer  of  the  defendant 
W X herein,  as  to  the  [first]  counter-claim, 

First.  Denies  each  and  every  allegation  of  the  answer 
respecting  the  same. 

Second.  For  a  second  defense  to  said  counter-claim  the 
plaintiff  alleges: 

That  at  the  time  alleged  in  the  complaint  as  the  time  of  the 
making  of  the  supposed  note  therein  mentioned,  this  plaintiff 
was  an  infant  under  the  age  of  twenty-one  years,  to-wit,  of 
the  age  of  ....  years  [or  stating  other  defense,  as  if  in  an 
answer  to  a  complaint]. 

2257.  Reply  of  statute  of  limitations  (Wisconsin). 
The  plaintiff  alleges  that  the  said  cause  of  action,  alleged 

for  a  counter-claim  in  said  answer,  did  not  accrue  at  any  time 
within  ....  years  next  before  the  commencement  of  this 
action. 


Chapter  CXXIL]  1561  [Forms  2258-2260. 

2258.  Reply  in  states  where  new  defensive  matter  must 

be  replied  to  as  well  as  counter-claims.^ 

The  plaintiff,  replying  to  the  defendant's  answer  herein, 
denies  each  and  every  allegation  therein  contained. 

[The  foregoing  is  to  be  used  where  the  answer  contains  de- 
fensive matter  only.] 

2259.  The  same,  where  answer  contains  both  denials 

and  new  matter. 

The  plaintiff",  replying  to  the  defendant's  answer  [or 
to  the  first  defense  contained  in  the  defendant's  answer] 
herein,  denies  each  and  every  allegation  contained  in  the 
second  paragraph  of  said  answer  [or  defense,  or  otherwise 
clearly  specify  the  part  of  the  answer  containing  new  matter] 
and  alleges  [set  forth  new  matter  in  avoidance,  as  in  an  answer.] 

2260.  The  same,  where  answer  contains  both  a  defense 

and  a  counter-claim. 

The  plaintiff,  replying  to  the  defendant's  answer  [or,  to 
the  first  defense  stated  in  the  defendant's  answer]  herein, 
I.     Denies  [specify  new  matter  in  answer  which  is  denied]. 

1  New  matter  set  up  in  the  an-  fensive  matter  in  the  answer  is  not 
swer  must,  in  most  of  the  states  required  to  be  replied  to,  unless  the 
covered  by  this  work,  be  met  by  a  court  orders  a  reply  to  new  matter 
reply,  in  order  to  controvert  the  in  the  answer  constituting  a  defense 
same;  and  such  reply  may,  by  way  by  way  of  avoidance.  N.  Dak.  Rev. 
of  controverting  the  answer,  allege  Codes  1905  sec.  6863;  S.  Dak.  C.  C. 
new  matter;  but  such  new  matter  P.  1908  sec.  130.  In  Wisconsin  and 
cannot  be  inconsistent  with,  nor  Arkansas  there  is  no  reply  except 
enlarge  or  alter  the  cause  of  action  upon  the  allegation  of  a  counter- 
set  up  in  the  complaint.  Ariz.  R.  S.  claim.  Wis.  Stats.  1913  sees.  2658- 
1913  sees.  424,  428;  Colo.  Code  Ann.  2661;  Ark.  Dig.  of  Stats.  1904 
1911  sec.  66;  Iowa  Ann.  Code  1897  sec.  6108.  In  California  and 
sees.  3576,  3577;  Kans.  Gen.  Stats.  Idaho  the  only  pleadings  allowed 
1909  sec.  5697;  Minn.  Gen.  Stats.  on  the  part  of  the  plaintiff  are,  the 
1913  sec.  7760;  Mont.  Rev.  Codes  complaint  and  the  demurrer  to  the 
1907  sees.  6560,  6561 ;  Mo.  R.  S.  1909  answer.  Cal.  C.  C.  P.  1906  sec.  422; 
sec.  1809;  Neb.  R.  S.  1913  sec.  7680;  Idaho  Rev.  Codes  1908  sec.  4162. 
Okla.  Comp.  Laws  1909  sec.  5642;  In  Texas  it  is  not  necessary  for  the 
Oregon  Laws  1910  sec.  77;  Utah  plaintiff  to  deny  any  special  matter 
Comp.  Laws  1907  sec.  2980;  Wash.  of  defense  (other  than  counter- 
Rem.  amd  Bal.  Code  1910  sec.  277;  claim)  pleaded  by  the  defendant, 
Wyo.  Comp.  Stats.  1910  sec.  4399.  but  the  same  shall  be  regarded  as 

In  North  and  South  Dakota  de-  denied  unless   expressly  admitted. 


Form  2260.]  1562  [Chapter  CXXII. 

II.  Alleges  that  [set  forth  new  matter  in  avoidance  as  in  an 
answer]. 

As  to  the  [first]  counter-claim  in  said  answer  contained, 
the  plaintiff,  for  a  first  defense, 

I.  Denies  each  and  every  allegation  thereof  [or  plead 
specific  denial  of  particular  facts]. 

II.  For  a  second  defense  to  said  counter-claim,  alleges 
that  [here  state  new  facts,  as  in  an  answer]. 


PART  IV 


FORMS    RELATING    TO    SUPPLEMENTAL 
PLEADINGS  AND  OTHER  INTER- 
MEDIATE PROCEEDINGS 


CHAPTER  CXXIII. 


SUPPLEMENTAL  PLEADINGS. 


2261.  General     form     of     supple- 

mental pleading. 

2262.  Supplemental  complaint  in  a 

creditor's  suit,  seeking  to 
set  aside  an  assignment 
made  subsequent  to  the 
original  complaint,   which 


alleged  that  defendants  in- 
tended to  assign  with  pref- 
erences, in  violation  of  an 
agreement  with  the  plain- 
tiffs, and  prayed  an  in- 
junction. 


The  codes  in  some  of  the  states  provide  that  either  party 
may  be  allowed,  on  terms,  to  make  and  serve  a  supplemental 
pleading  alleging  material  facts  occurring  after  the  former 
pleading,  or  of  which  the  party  was  ignorant  when  the  former 
pleading  was  made.^  But  in  the  codes  of  most  of  the  states 
covered  by  this  work  the  right  is  confined  to  a  statement  of 
facts  occurring  after  the  making  of  the  original  pleading.^ 
The  supplemental  pleading  does  not  take  the  place  of  the 
former  pleading,  nor  set  up  a  distinct  cause  of  action;  it 
simply  alleges  certain  additional  facts  germane  to  the 
original  cause  of  action  or  defense. 

2261.    General  form  of  supplemental  pleading. 

[Title.] 

The  plaintiff  [or  defendant]  for  a  supplemental  complaint 
[or  answer]  herein,  pursuant  to  an  order  of  this  court,  dated 
,  19. .,  alleges,  etc. 

[Or,  when  the  proposed  supplemental  complaint  is  served 
with  the  motion  for  leave]: 


»  Wis.  Stats.  1913  sec.  2687;  Iowa 
Ann.  Code  1897  sec.  3641 ;  Mo.  R.  S. 
1909  sec.  1854;  N.  Dak.  Rev.  Codes 
1905  sec.  6887;  S.  Dak.  C.  C.  P. 
1908  sec.  154;  Tex.  Civ.  Stats.  Ann. 
1913  art.  1824;  Utah  Comp.  Laws 
1907  sec.  2998. 

2  Ark.  Dig.  of  Stats.  1904  sec. 
6149;  Cal.  C.  C.  P.  1906  sec.  464; 
Colo.  Code  Ann.  1911  sec.  80;  Idaho 


Rev.  Codes  1908  sec.  4219;  Kans. 
Gen.  Stats.  1909  sec.  5738;  Mont. 
Rev.  Codes  1907  sec.  6583;  Minn. 
Gen.  Stats.  1913  sec.  7763;  Nev.  R. 
S.  1913  sec.  7716;  Okla.  Comp. 
Laws  1909  sec.  5684;  Oregon  Laws 
1910  sec.  108;  Wash.  Rem.  and  Bal. 
Code  1910  sec.  308;  Wyo.  Comp. 
Stats.  1910  sec.  4442. 


Form  2262.]  1566  [Chapter  CXXIII. 

The  plaintiff  [or  defendant]  for  a  proposed  supplemental 
complaint  [or  answer]  herein,  alleges,  etc.,  etc. 

2262.  Supplemental  complaint  in  a  creditor's  suit,  seek- 
ing to  set  aside  an  assignment  made  subsequent 
to  the  original  complaint,  which  alleged  that  de- 
fendants intended  to  assign  with  preferences, 
in  violation  of  an  agreement  with  the  plaintiffs, 
and  prayed  an  injunction. 

[Title  of  the  cause,  naming  among  the  defendants  the  as- 
signees now  joined  as  parties]. 

The  plaintiffs,  for  a  supplemental  complaint  herein  [pur- 
suant to  an  order  of  this  court,  dated ,  19.  .]  and  on 

behalf  of  themselves,  and  all  the  other  creditors  of  M . . . . 
N. . . .  &  Co.,  entitled  under  the  original  complaint  to  come 
in,  and  who  may  come  in  and  contribute  to  thejexpenses  of 
this  suit,  complain  and  allege: 

I.  That  on  the  ....  day  of . . ,  19 . . ,  they  commenced 

their  action  in  this  court  against  the  defendants  [naming  the 
debtors]  by  the  service  of  a  summons  and  copy  of  complaint, 
to  which  complaint  the  plaintiffs  refer  as  if  the  same  were 
herein  repeated,  and  as  part  of  this  supplemental  complaint. 

II.  That  an  injunction  was  granted,  pursuant  to  the 
said  complaint,  restraining  the  said  defendants  from  making 
any  assignment  or  disposition  of  the  property  owned  by  the 

firm  of  M N &  Co.,  in  the  month  of ,  19. .,  or 

the  proceeds  thereof.  That  at  the  time  of  service  of  the  said 
summons  and  complaint,  the  said  injunction  was  duly  served 
on  all  the  said  defendants. 

III.  That  after  the  service  of  the  said  injunction,  the 
said  defendants,  in  violation  thereof,  executed  an  assign- 
ment to  the  present  defendants  [naming  assignee]  of  all  the 

property  of  the  firm  of  M N &  Co.,  including  a 

large  amount  of  property  owned  by  the  said  firm  in  the  month 

of ,  19 . .,  and  a  large  amount  of  the  proceeds  of  other 

property,  also  belonging  to  the  said  firm  in  the  said  month. 

IV.  That,  as  the  plaintiffs  are  informed  and  beheve,  the 
said  [assignees]  had  notice  of  this  action  and  of  the  said  in- 
junction at  the  time  of  the  execution  and  delivery  of  the  said 
assignment. 


Chapter  CXXIII.]  1567  [Form  2262. 

V.  That,  as  the  plaintiffs  are  informed  and  beUeve,  the 
said  assignment  was  upon  some  trust  for  the  payment  of 
creditors  of  the  said  firm,  with  certain  preferences  to  a  large 
amount  to  a  part  of  their  creditors,  not  including  the  plain- 
tiffs, and  in  violation  of  the  agreement  alleged  in  the  said 
original  complaint;  and  the  property  thus  assigned  is  not 
sufTicient  to  pay  the  debts  which  the  said  firm  owed  in  said 
month  of last,  and  still  remaining  unpaid. 

VI.  That  the  said  [debtors]  have  recently,  in  the  most 
public  manner,  stated  that  they  owed,  at  the  time  of  their 

failure  in last,  three  millions  of  dollars,  two  millions 

of  which  they  claim  to  have  satisfied;  they  also  as  openly 
state  their  losses  in  disposing  of  a  portion  of  their  stock  of 
goods,  and  their  store  expenses,  and  expenses  in  making 
collections,    at   six   hundred    thousand    dollars    since   their 

failure  in last,  and  the  plaintiffs  believe  and  insist  that 

there  has  been  an  unwarrantable  sacrifice  of  their  best 
assets. 

VII.  That,  as  the  plaintiffs  are  informed  and  believe,  the 

said  firm,  and  all  the  members  thereof,  were,  in last, 

when  they  obtained  the  extension  mentioned  in  the  original 
complaint,  and  have  ever  since  been,  largely  insolvent. 

VIII.  That  it  was  a  condition  of  the  said  extension  that 
all  the  creditors  of  the  said  firm  should  come  into  it,  and  the 
extension  given  by  the  plaintiffs  was  upon  that  condition; 
but  in  fact  only  about  one-third  of  the  creditors  did  come 
into  it,  and  this  fact  was  concealed  from  the  plaintiffs;  they 
received  the  extended  notes  on  the  faith  of  the  extension 
having  been  agreed  to  by  all  the  creditors. 

IX.  That  if  the  said  assignment  is  carried  into  effect, 
the  plaintiffs  will  receive  as  their  dividend  not  more  than 
fifty  per  cent,  of  their  demands,  as  they  are  informed  and 
believe.  The  said  [assignees]  are  not  of  sufficient  pecuniary 
responsibility  or  business  experience  to  be  intrusted  with  so 
large  an  amount  of  property;  the  said  0....  P....  was 
formerly  a  clerk  of  the  said  M. . . .  N. . . .  &  Co.,  and  the 
said  Q .  .  .  .  N .  .  .  .  is  a  son  of  M .  . .  .  N . .  . .  and,  as  the 
plaintiffs  believe,  will  be  entirely  under  the  control  and 
direction  of  said  M.  .  . .  N.  . . .,  and  the  said  assignment  is 
merely  a  cover  to  enable  the  said  M . . . .  N . . . .  to  keep  the 
property  in  his  own  possession. 


Form  2262.]  1568  [Chapter  CXXIII. 

WHEREFORE,  the  plaintiffs  demand  judgment  as  in  the 
original  complaint  demanded,  and  that  the  said  assignment 
be  set  aside,  that  the  property  assigned  be  delivered  to  a  re- 
ceiver, and  distributed  equally  among  all  the  creditors  of 

M ....  N ....  &  Co.  who  were  such  in last;  and  that  in 

the  mean  time  the  defendants  be  restrained  by  injunction 
from  disposing  of  any  of  the  said  assigned  property. 


CHAPTER  CXXIV. 


ACCOUNTS  AND  BILLS  OF  PARTICULARS. 


2263.  Demand  for  copy  of  account. 

2264.  Affidavit    for    extension    of 

time  to  plead,  pending  de- 
livery of  copy  of  account. 
2265<  Order  extending  time  to 
plead,  pending  service  of 
copy  of  account. 

2266.  Demand  for  copy  of  bill  of 

particulars. 

2267.  Affidavit   by   defendant   on 

which  to  base  motion  for 
bill  of  particulars. 

2268.  Order  to  furnish  bill  of  par- 

ticulars. 


2269.  Affidavit   to   obtain   further 

bill  of  particulars. 

2270.  Order  for  further  bill  of  par- 

ticulars. 

2271.  Copy  of  account  or  bill  of 

particulars  to  be  furnished. 

2272.  Notice  of  motion  to  preclude 

party  from  giving  evidence 
of  account  or  bill  of  par- 
ticulars. 

2273.  Order     precluding     plaintiff 

from  giving  evidence  on 
trial. 


In  actions  brought  to  recover  upon  accounts  for  goods 
sold  or  labor  performed,  the  defendant  may  demand  that  a 
copy  of  the  account  be  served  upon  him  if  it  be  not  incor- 
porated in  or  attached  to  the  complaint.^  In  many  of  the 
states  the  statute  expressly  requires  a  copy  of  the  account  to 
be  attached  to  and  filed  with  the  pleadings.^  In  Iowa  and 
Nebraska,  if  the  account  be  not  attached  the  complaint 
is  demurrable  in  Iowa,  or  subject  to  motion  to  compel  the 
plaintiff  to  attach  a  copy  to  the  complaint  in  Nebraska. 
Iowa  Ann.  Code  1897  sec.  3561;  Bank  v.  Engelbrecht,  58 
Neb.  639;  79  N.W.  556. 

The  statutes  in  the  states  first  cited  provide  that  "the 
court  may  order  a  further  account  or  bill  of  particulars  of 


1  Wis.  Stats.  1913  sec.  2672;  Ariz. 
R.  S.  1913  sec.  421;  Cal.  C.  C.  P. 

1906  sec.  454;  Colo.  Code  Ann. 
1911  sec.  69;  Idaho  Rev.  Codes 
1908  sec.  4209;  Mont.  Rev.  Codes 

1907  sec.  6569;  Minn.  Gen.  Stats. 
1913  sec.  7777;  N.  Dak.  Rev.  Codes 
1905  sec.  6868;  S.  Dak.  C.  C.  P. 

1908  sec.  135;  Oregon  Laws  1910 
sec.  84;  Utah  Comp.  Laws  1907  sec. 

99 


2988;  Wash.  Rem.  and  Bal.  Code 
1910  sec.  284. 

2  Ark.  Dig.  of  Stats.  1904  sec. 
6128;  Iowa  Ann.  Code  1897  sec. 
3623,  3624;  Kans.  Gen.  Stats. 
1909  sec.  5713;  Mo.  R.  S.  1909  sec. 
1832;  Neb.  R.  S.  1913  sec.  7692, 
7697;  Okla.  Comp.  Laws  1909  sec. 
5658;  Wyo.  Comp.  Stats.  1910  sec. 
4405. 


Forms  2263,  2264.]  1570  [Chapter  CXXIV. 

the  claims  of  either  party  to  be  furnished,"  and  by  Rule 
XVI  C.  C.  Rules  Wis.,  the  court  may  also  grant  such  modi- 
fication of  the  time  for  service  of  answer,  demurrer  or  reply 
as  the  granting  of  the  order  may  render  necessary;  but  in 
Minnesota  it  is  held  that  a  bill  of  particulars  may  only 
be  demanded  in  an  action  on  account,  and  that  in  other 
actions  the  remedy  is  by  motion  to  make  the  complaint 
more  definite  and  certain.  Comm'rs  v.  Am.  Loan  &  T. 
Co.,  75  Minn.  489;  78  N.  W.  113. 

With  slight  alterations  the  forms  in  this  chapter  may  be 
readily  adapted  for  use  by  the  plaintiff  in  case  he  be  en- 
titled to  demand  a  copy  of  the  account  or  bill  of  particulars 
upon  which  defendant's  counter-claim  is  based. 

2263.  Demand  for  copy  of  account. 

[Title.] 

SIR:  You  are  hereby  required  to  deliver  to  me,  within 
ten  days  after  service  hereof  on  you,  a  copy  [or,  if  complaint 
be  verified,  a  verified  copy]  of  the  account  alleged  in  the  com- 
plaint in  this  action. 

Dated ,  19.. 

G....  H.... 

To  E F Defendant's  Attorney. 

Attorney  for  Plaintiff. 

2264.  Affidavit  for  extension  of  time  to  plead,  pending 

delivery  of  copy  of  account. 

[Title.] 
[Venue.] 

G. . . .  H. . . .,  being  first  duly  sworn,  says  that  he  is  the 
attorney  for  the  defendant  in  this  action;  that  the  same  was 
commenced  by  the  service  of  a  summons  and  complaint,  on 

the day  of ,  19. .,  and  is  brought  to  recover  the 

sum  of  dollars  alleged  to  be  due  from  the  de- 
fendant to  the  plaintiff  upon  account  for  goods  sold  [or 
otherwise  state  what  action  is  brought  for];  that  the  items  of 
said  alleged  account  are  not  set  forth  in  said  complaint,  and 
on  the  ....  day  of ,  19.  .,  this  affiant  served  a  writ- 
ten demand  on  the  plaintiff's  attorney,  of  which  demand  a 
copy  is  hereto  annexed  and  made  part  hereof;  that  said  ac- 
count has  not  yet  been  served  on  this  affiant;  that  the  time 


Chapter  CXXIV.]  1571  [Forms  2265,  22C6. 

for  answering  the  said  complaint  expires  on  the  ....  day  of 

,  19. .,  and  that  the  afTiant  is  unable  to  prepare  the 

answer  to  said  complaint  without  said  account;  that  the  de- 
fendant has  instructed  this  affiant  to  prepare  an  answer, 
and  has  expressed  to  affiant  a  purpose  in  good  faith  to  de- 
fend the  action,  and  from  a  statement  of  the  case  in  this 
action  made  by  the  defendant  to  him,  the  affiant  verily  be- 
lieves that  the  defendant  has  a  good  and  substantial  de- 
fense upon  the  merits  to  the  cause  of  action  set  forth  in  the 
complaint,  or  to  some  part  thereof. 

G....  H.... 
[Jurat] 

2265.  Order  extending  time  to  plead,  pending  service  of 

copy  of  account. 

[Title.] 

On  reading  and  filing  the  affidavit  of  L. . . .  M ....  here- 
to annexed,  and  the  complaint  in  this  action,  and  on  motion 
of  G. . . .  H. .  . .,  attorney  for  the  defendant, 

ORDERED  that  the  time  for  answering  the  complaint 
herein  be  extended  for  ....  days  after  the  plaintiff  shall 
have  delivered  to  the  defendant's  attorney  a  copy  of  the  ac- 
count referred  to  in  said  complaint. 

And  meanwhile  let  all  proceedings  herein,  on  the  part  of 
the  plaintiff,  be  stayed. 

Dated ,19..  J....  K.... 

Circuit  Judge. 
[or  other  proper  officer.] 

2266.  Demand  for  copy  of  bill  of  particulars. 

[Title.] 

SIR:  You  are  hereby  required  to  serve  upon  me  within 
ten  days  a  bill  of  particulars  of  the  plaintiff's  claim  in  this 
action,  showing  the  names  and  amounts  of  the  various 
articles  of  merchandise  alleged  to  have  been  sold  by  the 
plaintiff  to  the  defendant,  with  dates  and  prices  thereof,  and 
all  payments  or  credits  upon  the  same.  [Or,  the  various  items 
of  damage  which  the  plaintiff  claims  to  have  sustained  by 
reason  of  the  alleged  wrongful  acts  of  the  defendant;  or, 
the  amount,  nature  and  kind  of  services  which  the  plaintiff 
claims,  and  the  value  of  the  same  by  items,  with  the  date 


Form  2267.]  1572  [Chapter  CXXIV. 

when  each  item  was  rendered;  or,  the  various  breaches  of  the 
bond  named  in  the  complaint;  or,  the  particular  goods  or 
property  claimed  to  have  been  converted  by  the  defendant, 
by  items,  with  the  date  of  the  alleged  conversion  of  each 
item  and  the  value  thereof;  or,  the  particular  sales  which  the 
plaintiff  lost  by  reason  of  the  defendant's  alleged  libelous 
statement,  and  the  profits  lost  on  each  sale,  with  the  names  of 
the  persons  whose  custom  is  alleged  to  have  been  lost,  and 
the  times  when  and  places  where  such  loss  occurred.] 

Dated ,19.. 

G....  H...« 

To  E F Esq., 

Plaintiff's  Attorney. 

2267.    Affidavit  by  defendant  on  which  to  base  motion 
for  bill  of  particulars. 

[Title.] 
[Venue.] 

G. . . .  D . . . .,  being  first  duly  sworn,  says  that  he  is  the 
defendant  in  this  action. 

That  the  complaint  herein  was  served  on  the  ....  day  of 
19.. 

That  the  cause  of  action  therein  stated  is  for  [here  state 
what]  and  is  alleged  in  general  terms,  and  fails  to  state  the 
particulars  of  the  plaintiff's  claim. 

That  the  defendant,  on  the  ....  day  of ,  19 . . ,  m.ade 

demand  in  writing  on  the  plaintiff  that  he  deliver  a  bill  of  par- 
ticulars of  his  claim;  a  copy  of  which  demand  is  attached 
hereto  and  marked  "Exhibit  A;"  that  notwithstanding  such 
demand  no  bill  of  particulars  has  been  served  on  or  furnished 
to  the  defendant. 

That  the  defendant's  purpose  is  to  defend  this  action  in 
good  faith,  and  he  is  ignorant  of  the  particulars  of  the  plaint- 
iff's claim. 

That  he  has  a  valid  defense  to  the  whole  of  the  plaintiff's 
said  cause  of  action  [or,  to  a  part  of  the  said  plaintiff's  cause 
of  action,  specifying  what  part];  that  he  has  fully  and  fairly 

stated  the  case  in  this  action  to  his  counsel  G. . . .  H 

Esq.,  who  resides  at   and  that  upon  the  statement 

thus  made  he  is  advised  by  his  counsel  that  he  has  a  valid 


Chapter  CXXIV.]  1573  [Form  2268. 

and  substantial  defense  to  said  action  in  whole  [or,  in  part 
as  aforesaid]. 

That  it  is  necessary  and  material  to  his  said  defense  that  a 
bill  of  particulars  of  the  plaintiff's  said  claim  be  rendered,  as 
he  is  advised  by  his  said  counsel  after  such  statement  so 
made,  and  as  he  verily  believes. 

That  no  previous  motion  for  service  of  such  bill  of  parti- 
culars has  been  made,  and  that  the  time  for  answering  said 
complaint  will  expire  ,  19..,  and  has  not  been  ex- 
tended. 

That  this  affidavit  is  made  for  the  purpose  of  moving  for  an 
order  requiring  the  service  of  such  bill  of  particulars,  and  for 
an  extension  of  time  in  which  to  answer  said  complaint,  with 
a  stay  of  proceedings  during  such  time. 

V4  •  •  •  •    i-y  •  ■  •  • 

[Jurat] 

2268.    Order  to  furnish  of  particulars. 

[Title.] 

The  defendant's  motion  for'  a  bill  of  particulars  of  the 
plaintiff's  claim  coming  on  to  be  heard  on  the  ....  day  of 

,  19. .,  and  on  reading  the  complaint,  the  affidavit  of 

the  [defendant]  and  [here  mention  other  papers  used  on  hear- 
ing], G . . . .  H . . . .  attorney  for  defendant,  appearing  for  the 
motion,  and  E ....  F ....  for  the  plaintiff  opposing,  and  after 
hearing  and  being  advised  in  the  premises, 

ORDERED  that  within  ....  days  after  the  service  of  this 
order  on  his  attorney,  the  plaintiff  deliver  to  the  defend- 
ant's attorney  a  bill  of  particulars  [duly  verified],  of  the  de- 
mand for  which  this  action  is  brought,  stating  fully  [here 
specify  what  the  bill  shall  specially  state],  and — 

That  all  proceedings  herein,  on  the  part  of  the  plaintiff,  be 
stayed,  and  that  the  defendant  have  ....  days,  after  the 
service  of  such  bill,  in  which  to  answer  the  complaint,  and 
that  he  recover  ten  dollars,  the  costs  of  this  motion. 

Dated 19.. 

«!....   XV. .... 

Judge. 


Forms  2269-2271.]  1574  [Chapter  CXXIV. 

2269.  Affidavit  to  obtain  further  bill  of  particulars. 

[Title.] 
[Venue.] 

C . . . .  D being  first  duly  sworn,  says  that  he  is  the 

defendant  in  this  action,  and  that  on  the  ....  day  of 

19. .,  the  plaintifT,  upon  defendant's  demand  [or,  upon  an  or- 
der so  requiring]  served  on  the  defendant's  attorney  herein  a 
copy  of  the  account  mentioned  in  his  complaint  [or,  a  bill  of 
particulars  of  the  plaintiff's  demand  on  which  this  action  is 
brought]  which  copy  so  served  is  hereto  annexed. 

That  the  same  is  so  defective,  indefinite  and  insufficient 
that  the  defendant  is  unable  to  answer  the  same  [or,  to  go  to 
trial  thereon],  in  that  it  fails  to  state  the  dates  of  the  several 
items  of  the  account  [or  otherwise  specify  the  defects]  and  that 
a  further  and  more  specific  account  [or  bill  of  particulars]  is 
absolutely  necessary  in  order  to  enable  the  defendant  to  pre- 
pare his  answer  and  prepare  for  trial  for  the  following  reasons 
[here  state  reasons], 

C...  D.... 

2270.  Order  for  further  bill  of  particulars. 

[Jurat.] 
[Title.] 

Upon  the  affidavit  of  C . . . .  D . , . . ,  and  upon  the  com- 
plaint herein  and  upon  [name  other  papers  if  any,  on  which 
order  is  based],  and  upon  motion  of  G....  H....,  Esq., 
defendant's  attorney,  E....  F....,  Esq.,  plaintifT's  at- 
torney having  appeared  in  opposition  thereto. 

ORDERED  that  the  plaintiff's  attorney  deliver  to  the  de- 
fendant's attorney,  within  ....  days  after  service  of  this  or- 
der, a  further  account  in  writing,  of  the  particulars  of  the 
plaintiff's  demand  herein,  specifying  [here  point  out  parti- 
cularly the  defects  to  be  supplied]. 

Ordered  further  [continue  with  order  for  stay,  etc.,  as  in 
last  preceding  order]. 

2271.  Copy  of  account  or  bill  of  particulars  to  be  fur- 

nished. 

[Title.] 
To  G . . . .  H . . . . ,  Esq., 
Defendant's  Attorney. 


Chapter  CXXIV.]  1575  [Form  2272. 

TAKE  NOTICE  that  the  within  is  a  true  copy  of  the  ac- 
count mentioned  in  the  complaint  herein  [or,  a  true  bill  of 
particulars  of  the  plaintiff's  demand  in  this  action]  as  de- 
manded by  you. 

Dated ,19..  E F , 

Plaintiff's   Attorney. 

[//  complaint  be  verified,  attach  verification  to  the  account  or 
bill,  as  follows]: 
[Venue.] 

A . .  . .  B . . .  . ,  being  first  duly  sworn,  says  that  he  is  the 
plaintiff  in  the  above  entitled  action,  and  that  the  forego- 
ing is  a  correct  account  [or,  bill  of  particulars]  of  the  plain- 
tiff's claim  on  which  this  action  is  brought,  and  that  he  verily 
believes  it  to  be  true. 

A....  B.... 
[Jurat.] 

2272.    Notice  of  motion  to  preclude  party  from  giving 
evidence  of  account  or  bill  of  particulars. 

\Title.] 

SIR:  Please  take  notice  that  upon  the  complaint  herein 
and  the  account  and  further  account  [or,  bill  of  particulars 
and  further  bill  of  particulars]  heretofore  served  herein,  and 
upon  the  affidavit  of  L , . . .  M . . . . ,  a  copy  of  which  is  hereto 
annexed  and  herewith  served  on  you,  the  defendant,  by  his 
counsel,  will  move  the  court,  at  the  next  regular  term  there- 
of, at  the  court  house  in  the  ....  of ,  in  said  county, 

at  the  opening  of  the  court  on  the  ....  day  of ,  19. ., 

or  as  soon  thereafter  as  counsel  can  be  heard,  for  an  order 
herein  that  the  plaintiff  be  precluded  from  giving  evidence 
on  the  trial  of  this  action,  of  the  matters  of  which  he  has  failed 
and  refused  to  furnish  a  sufficient  bill  of  particulars  [or,  ac- 
account]  to-wit  [here  specify  the  matters  sought  to  be  pre- 
cluded], and  for  such  other  order  or  relief  as  the  court  may 
grant  in  the  premises. 

Dated ,  19.. 

G....  H...., 

To  E F Esq.,  Defendant's  Attorney. 

Plaintiff's  Attorney. 


Form  2273.]  1576  [Chapter  CXXIV. 

2273.    Order  precluding  plaintiff  from  giving  evidence 
on  trial. 

The  motion  of  the  defendant  for  an  order  precluding  the 
plaintiff  from  giving  evidence  of  certain  matters  therein 
specified,  coming  on  to  be  heard  at  said  term  on  the  .... 
day  of 19. .; 

On  reading  and  fifing  the  affidavit  of  L . . . .  M herein, 

and  on  the  pleadings  and  [here  state  other  papers  used  in  the 
motion],  and  after  hearing  G. . . .  H. . . .,  attorney  for  the 
[defendant]  for  the  motion,  and  E . .  . .  F . . . . ,  plaintiff's  at- 
torney in  opposition,  and  being  advised  in  the  premises: 

ORDERED  that,  upon  the  trial  of  this  action,  the  plaint- 
iff be  precluded  from  giving  evidence  of,  or  in  support  of, 
the  matters  of  which  he  has  failed  to  furnish  a  [further] 
sufficient  account  [or,  bill  of  particulars]  as  required  herein, 
to-wit  [here  specify  the  matters  precluded],  and  that  the  de- 
fendant have  ten  doUars,  the  costs  of  this  motion. 

By  the  Court: 

L. . . .  M . . . .,  Circuit  Judge. 


CHAPTER  CXXV. 


MOTIONS  RESPECTING  THE  PLEADINGS. 


2274.  Notice  of  motion  for  exten- 

sion of  time  to  answer. 

2275.  AflTidavit    for    extension    of 

time  to  answer. 

2276.  Order    extending    time    to 

plead. 

2277.  Notice   of  motion   to   make 

pleading  more  definite  and 
certain. 

2278.  Order  thereon. 

2279.  Notice  of  motion  for  leave 

to  serve  amended  pleading, 
copy  ser\'ed  with  motion. 

2280.  Notice  of  motion  for  leave  to 

amend,  amended  pleading 
not  served. 

2281.  Order      allowing     amended 

pleading. 

2282.  Notice  of  amended  pleading, 

when  copy  has  not  been 
served  with  the  motion. 

2283.  Order  giving  leave  to  amend 

formal  error. 

2284.  Notice  of  motion  to  amend 

complaint  by  striking  out 
co-plaintiffs,  and  making 
them  defendants. 

2285.  The   same,    by    adding   de- 

fendant. 

2286.  The  same,  by  correcting  fic- 

titious name. 

2287.  Affidavit  to  obtain  leave  to 

correct  fictitious  name. 

2288.  Order  thereon. 

2289.  Affidavit    for    leave    to    file 

supplemental  complaint. 

2290.  The  same,  copy  of  supple- 

mental   pleading    served 
with  motion. 

2291.  Notice  of  motion  for  leave 

to  file  supplemental  com- 
plaint. 


2292.  Order  allowing  supplemental 

complaint. 

2293.  AfTidavit   on    application   to 

file  supplemental  answer. 

2294.  Order  granting  leave  to  make 

a  supplemental  answer. 

2295.  Notice  of  motion  to  compel 

reply. 

2296.  Order  thereon. 

2297.  AflTidavit  on  motion  to  dis- 

miss for  failure  to  file 
complaint  and  pay  state 
tax.     (Wisconsin.) 

2298.  Certificate  that  summons  is 

not  filed,  nor  tax  paid. 
(Wisconsin.) 

2299.  Order  thereon.     (Wisconsin.) 

2300.  Notice  indorsed  on  pleading 

returned  for  irregularity. 

2301.  Notice  of  irregularity  in  re- 

spect to  one  of  several 
persons  pleading  together. 

2302.  Notice  of  motion  to  require 

attorney  to  receive  plead- 
ing. 

2303.  Order  thereon. 

2304.  Notice  of  motion  to  strike 

out  irrelevant,  redundant 
or  scandalous  matter. 

2305.  Order  thereon. 

2306.  Notice  of  motion  to  compel 

plaintiff  to  elect  between 
several  counts  setting  forth 
the  same  cause  of  action. 

2307.  Affidavit  for  same. 

2308.  Order  requiring  election. 

2309.  Notice   of  motion  to  strike 

out  answer. 

2310.  Affidavit  to  falsity  of  answer. 

2311.  Corroborative  affidavit. 

2312.  Order  thereon. 


Forms  2274,  2275.] 


1578 


:hapter  CXXV. 


2313.  Notice  of  motion  to  strike  out 

one  defense  as  sham,  and 
for  judgment  upon  the 
other  as  frivolous. 

2314.  Notice  of  motion  for  judg- 

ment on  frivolous  plead- 
ing.    (Wisconsin.) 

2315.  Order  striking  out  an  answer 

in  part  as  frivolous  and  in 
part  as  irrelevant.  (Wis- 
consin.) 

2316.  Order  for  judgment  on  friv- 

olous pleading. 

2317.  The  same,  reserving  leave  to 

amend. 


2318.  Notice  of  motion  by  plain- 

tiff for  judgment  on  the 
pleadings. 

2319.  Notice    of    application    for 

judgment  for  amount  ad- 
mitted by  answer  to  be 
due.     (Wisconsin.) 

2320.  Notice   of   motion   that   the 

defendant  satisfy  that  part 
of  the  plaintiff's  claim  ad- 
mitted to  be  just.  (Wis- 
consin.) 

2321.  Order  thereon. 

2322.  Notice   of  motion   to  strike 

answer  from  the  files  be- 
cause not  verified. 


2274.    Notice  of  motion  for  extension  of  time  to  answer. 

[Title.] 

TAKE  NOTICE  that  on  the  affidavit  of  C D ',  a 

copy  of  which  is  herewith  served,  and  upon  the  complaint 
heretofore  served  and  filed,  the  undersigned  will  move  the 

court,  at  a  special  term  thereof  to  be  held  at on  the 

. . .  .day  of ,  19. .,  at.  .  .  .o'clock  in  the  forenoon,  to 

enlarge  the  time  to  answer  herein  ....  days,  or  for  such  other 
relief  as  may  be  just. 

Dated ,  19..  G H 

Defendant's  Attorney. 

ToE....  F....,  Esq., 
Plaintiff's  Attorney. 


2275.    Affidavit  for  extension  of  time  to  answer. 

[Title.] 
[Venue.] 

C. . . .  D. . . .,  being  duly  sworn,  says: 

I.  That  he  is  the  defendant  in  the  above  entitled  action, 
and  intends  in  good  faith  to  defend  the  same. 

II.  That  he  has  fully  and  fairly  stated  the  case  in  this 
cause  to  G .  . .  .  H .  .  .  . ,  his  counsel  therein,  who  resides  in  the 

village  of [or,  at  No , street,  in  the  city  of 

],  and  that  he  has  a  good  and  substantial  defense,  on 

the  merits,  to  the  whole  of  said  action,  as  he  is  advised  by  his 


Chapter  CXXV.]  1579  [Forms  2276,  2277. 

counsel,  and  verily  believes.  [Or  if  the  defense  be  to  part 
only,  state  particularly  what  part]. 

III.  [State  excuse,  e.  g.,  thus]:  That  he  was  compelled  to 
leave  the  city  of in  which  he  resides,  on  business,  im- 
mediately after  being  served  with  the  summons  herein,  and 
remained  absent  for  two  weeks,  since  which  he  has  not  had 
time  to  instruct  his  counsel  concerning  his  answer  in  this 
cause,  and  that ....  days  further  time  is  necessary  therefor. 

That  the  complaint  was  served  on  the.... day  of , 

19..,  and  the  time  to  answer  expires  on  the.... day  of 

,  19. .,  and  no  extension  of  such  time  has  been  had 

[or  if  any,  state  what], 

C...  D 

[Jurat.] 

2276.  Order  extending  time  to  plead. 

On  the  annexed  affidavit  of  G . . . .  D . . . . ,  and  upon  the 
complaint  herein, 

ORDERED  that  the  said  defendant  have. . .  .days  addi- 
tional time  [or  until  the. . .  .day  of ,  19. .]  to  answer 

the  complaint  herein. 

Dated 19..  L M 

Judge. 

2277.  Notice  of  motion  to  make  pleading  more  definite 

and  certain. 

[Title.] 

SIR:  Please  take  notice  that  upon  the  [complaint]  hereto- 
fore served  in  this  action,  the  defendant,  by  his  counsel,  will 
move  the  court  at  the  next  regular  term  thereof,  to  be  held 

at  the  court  house,  in  the  city  of on  the. . .  .day  of 

19.  .,  at  the  opening  of  court  on  that  day,  or  as  soon 

thereafter  as  counsel  can  be  heard,  for  an  order  requiring  the 
complaint  herein  to  be  made  more  definite  and  certain  in 
this  respect,  to-wit  [here  state  the  respects  in  which  greater 
definiteness  and  certainty  are  deemed  necessary]. 

Dated ,  19..  G....  H...., 

Defendant's  Attorney. 


Forms  2278-2280.]  1580  [Chapter  CXXV. 

2278.  Order  thereon. 

[Title.] 

The  motion  of  the  defendant  for  an  order  requiring  the 
complaint  herein  to  be  made  more  definite  and  certain 
coming  on  to  be  heard  before  the  court  on  the. . .  .day  of 

,19..; 

Upon  the  complaint  herein,  and  on  motion  of  G.... 
H. . . .,  Esq.,  attorney  for  the  defendant, 

ORDERED,  that  the  plaintiff  make  his  complaint  herein 
definite  and  certain  by  amendment,  by  showing  [here  state 
the  respects  in  which  it  is  to  be  amended],  and  that  within 
....  days  after  the  service  of  this  order  on  his  attorney,  he 
serve  on  the  defendant's  attorney  a  copy  of  the  complaint  as 
amended,  and  pay  ten  dollars,  the  costs  of  this  motion. 

By  the  Court: 
J. . . .  K. . . .,  Circ\iit  Judge. 

2279.  Notice  of  motion  for  leave  to  serve  amended  plead- 

ing, copy  served  with  motion. 

[Title.] 
TAKE  NOTICE  that  upon  the  affidavit  of  C D 

and  proposed  amended  answer  [or  other  pleading]  copies  of 
which  are  herewith  served,  and  upon  the  pleadings  served  in 
this  action,  the  undersigned  will  move  the  court,  at  a  special 

term  to  be  held  at in  the  city  of on  the.  . .  .day 

of next,   at. ..  .o'clock  in  the....  noon,  for  leave  to 

file  and  serve  such  amended  answer  [or  other  pleading]  in 
this  action,  and  for  such  other  andfurtherorderasmay  be  just. 

[Date.] 

G....  H 

Defendant's  Attorney. 

[Address.] 

[The  affidavit  on  which  the  motion  is  based  should  set  forth 
the  facts  which  are  relied  upon  to  serve  to  excuse  the  defect  and 
Justify  the  application  for  leave  to  amend.] 

2280.  Notice  of  motion  for  leave  to  amend,  amended 

pleading  not  served. 

[Title  of  the  cause.] 
TAKE  NOTICE  that  on  the  affidavit  of  C. . . .  D 

herewith  served,  and  on  all  the  pleadings  and  proceedings  in 


Chapter  CXXV.]  1581  [Forms  2281,  2282. 

this  action,  the  undersigned  will  move  the  court,  at  a  special 

term  thereof  to  be  held  at on  the ....  day  of , 

19. .,  at. . .  .o'clock  in  the. . .  .noon,  *  for  leave  to  amend  his 
answer  [or  other  pleading]  herein,  by  the  insertion  of  the 
following  clause  in  place  of  the  fifth  paragraph  thereof  [or 
otherwise  indicate  the  nature  of  the  amendment  sought  to  be 
made],  or  for  such  other  or  further  relief  as  may  be  just. 

[Date.] 

G....  H...., 
Defendant's  Attorney. 

[Address.] 

[The  better  practice  is  to  draw  the  proposed  pleading  and 
serve  same  with  the  motion,  as  indicated  in  the  last  preceding 
form.] 

2281.  Order  allowing  amended  pleading. 

[Title.]  [At  a  special  term,  etc.] 
On  reading  and  filing  the  affidavit  of  C . . .  .  D . .  . .  [and 
upon  the  proposed  answer  heretofore  served,  and  upon  the 
pleadings  herein],  and  on  motion  of  G. . . .  H. . . .  for  plain- 
tiff, after  hearing  E F....   [or,  no  one  appearing]  in 

opposition: 

ORDERED,  that  the  defendant  have  leave  to  *  serve  an 
answer  in  this  action,   amended  by  substituting,   for  the 

fifth  paragraph  of  the  original  answer,  the  words  " 

....,"  within  . . .  .days  from  the  date  of  this  order,  on  pay- 
ment of dollars  costs  to  the  plaintiff  [and  that  plain- 
tiff have  leave  to  demur  thereto  within  the  usual  time]. 

[Or  in  case  proposed  amended  pleading  has  been  served 
with  the  motion]:  ORDERED,  that  the  defendant  have  leave 
to  amend  his  original  answer  by  substituting  therefor  the 
proposed  amended  answer  already  served,  and  that  the 
service  of  said  amended  answer  already  made  stand  as  due 

service  thereof,   upon  payment  of dollars,   motion 

costs,  and  that  the  plaintiff  have  leave  to  demur  or  plead 
thereto  on  or  before ,  19 . . 

2282.  Notice  of  amended  pleading,  when  copy  has  not 

been  served  with  the  motion. 

Please  take  notice,  that  the  within  is  a  copy  of  the  amended 


Forms  2283-2287.]  1582  [Chapter  CXXV. 

complaint  [or  answer,  or  reply]  in  this  action. 

[Date.]  "  [Signature.] 

[Address.] 

2283.  Order  giving  leave  to  amend  formal  error. 

[^5  inform  2281  to  the  *,  continuing]:  amend  his  answer  on 
file  in  this  action,  by  inserting  [or  cancehng]  the  word 
[designating  the  error]  after  the  word  "...."  in  folio .... 

2284.  Notice  of  motion  to  amend  complaint  by  striking 

out  co-plaintiff's,  and  making  them  defendants. 

[As  in  Form  2280  to  the  *,  continuing]:  that  the  plaintiffs 
may  be  at  liberty  to  amend  their  complaint  by  striking  out 
the  names  of  A. . . .  B . .  . .  and  C . .  . .  D . , .  .  as  plaintiffs, 
and  making  them  defendants,  without  costs  as  to  the  other 
defendants  and  for  such  other  relief  as  may  be  just. 

[Date.]  [Signature.] 

[Address.] 

2285.  The  same,  by  adding  defendant. 

[As  in  Form  2280,  to  the  *,  continuing]:  that  the  plaintiff 
may  have  leave  to  amend  his  summons  and  complaint  in  this 
action  by  adding  W.  .  .  .  X.  .  .  .  as  a  defendant  therein,  with 
apt  words  to  charge  him;  and  for  such  other  relief  as  may  be 
just. 

[Date.]  [Signature.] 

[Address.] 

2286.  The  same,  by  correcting  fictitious  name. 

[As  in  Form  2280  to  the  *,  continuing]:  that  the  plaintiff 
have  leave  to  substitute  the  name  of ....  as  the  real  name  of 
the  defendant  in  this  action,  wherever  the  name  Richard 
Roe  occurs  in  the  papers  filed  in  this  action;  or  for  such  other 
relief  as  may  be  just. 

[Date.]  [Signature.] 

[Address.] 

2287.  Affidavit  to  obtain  leave  to  correct  fictitious  name. 

[Title.] 
[Venue.] 


Chapter  CXXV.]  1583  [Forms  2288-2290. 

A. . . .  B . . . .,  being  duly  sworn,  says: 

I.  That  he  is  the  plaintiff  in  this  action: 

II.  That  he  was  not  acquainted  with  the  real  name  of  the 
defendant  in  this  action  until  after  the  commencement  of 
this  action,  and  [about  one  week  ago]. 

III.  That  the  defendant's  real  name  is  E. . . .  F and 

not  G D . . . . 

A B.... 

[Jurat.] 

2288.  Order  thereon. 

[Commencement  as  in  Form  2281]. 

ORDERED  that  the  name  of  E F be  substituted 

in  place  of  that  of  G D as  the  real  name  of  the  de- 
fendant in  this  action. 

2289.  Affidavit  for  leave  to  file  supplemental  complaint. 

[Title.] 
[Venue.] 

A . . .  .  B being  first  duly  sworn  says  that  he  is  the 

plaintiff  in  the  above  entitled  action,  which  was  commenced 
on  the  , . .  .day  of ,  19. .,  and  is  brought  for  the  pur- 
pose of  [here  state  the  general  object  of  action],  and  that  issue 
has  been  joined  therein  [and  is  now  on  the  calendar  and  noticed 
for  trial  at  the  present  term]. 

That  it  becomes  necessary  for  defendant  to  file  and  serve  a 
supplemental  complaint  in  this  action,  for  the  following 
reasons,  to-wit  [here  state  facts  showing  necessity]. 

That  the  plaintiff  was  ignorant  of  said  facts  when  his 
former  complaint  was  made. 

Or,  that  said  facts  have  occurred  since  his  former  complaint 
herein  was  made. 

A....  B.... 
[Jurat.] 

2290.  The  same,  copy  of  supplemental  pleading  served 

with  motion. 

[Title.] 
[Venue.] 

A. . . .  B . . . .,  being  duly  sworn,  says: 

I.     That  he  is  the  plaintiff  above  named;  that  this  action 


Forms  2291,  2292.]  1584  [Chapter  CXXV. 

was  commenced  in  this  court  by  the  service  of  a  summons  and 

complaint  on  the. . .  .day  of ,  19. . ;  that  the  action  is 

brought  for  the  purpose  of  [state  briefly  the  object  of  the  suit, 
as,  the  foreclosure  of  a  certain  mortgage,  particularly  de- 
scribed in  the  complaint  herein];  that  issue  has  been  joined 
herein,  and  the  cause  is  now  upon  the  calendar  of  this  court, 
awaiting  trial. 

II.  Deponent  further  says,  that  he  has  read  the  annexed 
draft  of  the  proposed  supplemental  complaint,  and  the  facts 
therein  stated  are  true,  to  the  best  of  deponent's  knowledge 
and  belief.  That  said  facts  did  not  occur  [or,  did  not  come  to 
the  knowledge  of  this  deponent,  nor  had  he  any  information 
thereof]  until  after  the  service  of  the  original  complaint 
herein. 

A B 

[Jurat.] 

2291.  Notice  of  motion  for  leave  to  file  supplemental 

complaint. 

[Title.] 

TAKE  NOTICE,  that  upon  the  affidavit  of  A. ...  B ... . 
[and  copy  of  the  proposed  supplemental  complaint]  herewith 
served,  and  upon  all  the  pleadings  and  proceedings  in  this 
action,  the  undersigned  will  move  the  court,  at  a  special 

term   to  be  held  at on  the.  ..  .day  of ,    19.., 

for  leave  to  file  and  serve  such  supplemental  complaint  in 
this  action  [or,  to  serve  a  supplemental  complaint  setting  up 
the  matters  contained  in  the  annexed  affidavit];  or  for  such 
other  relief  as  may  be  just. 

[Date.] 

E....  F 

[Address.]  Plaintiff's  Attorney. 

2292.  Order  allowing  supplemental  complaint. 

[Title.]  [At  a  special  term,  etc.] 

On  reading  and  fihng  [describe  motion-papers],  and  on 

motion  of  E. . . .  F. . . .  for  the  plaintiff,  and  after  hearing 

G. . . .  H.  . . .  [or,  no  one  appearing]  in  opposition: 
ORDERED,  that  the  plaintiff  have  leave  to  serve,  Within 

....days  after  this  date,  a  copy  of  the  supplemental  com- 


Chapter  CXXV.]  1585  [Forms  2293,  2294. 

plaint  filed  upon  this  motion,  on  payment  to  the  [defendant] 

dollars  costs. 

[Or,  ordered,  that  the  plaintiff  have  leave  to  make  and 
file  the  proposed  supplemental  complaint  herein  upon  pay- 
ment of dollars  costs  of  motion  to  the  defendant,  and 

further  that  upon  such  payment  being  made,  the  service  of 
said  supplemental  complaint  heretofore  made  stand  as  the 
completed  service  thereof,  and  that  the  defendant  have  time 
to  plead  to  said  supplemental  complaint  until  and  including 
,19..] 

2293.  Affidavit  on  application  to  file  supplemental  an- 

swer. 

[Title.] 
[Venue.] 

C . . . .  D . . . . ,  defendant  above  named,  being  duly  sworn, 
says: 

I.  That  this  action  was  commenced  on  the.... day  of 

,  19 . . ;  that  issue  was  joined  therein  by  the  service  of 

this    defendant's    answer   on    the.... day    of ,    19.., 

and  this  cause  is  now  pending  upon  the  calendar  of  this 
court,  awaiting  trial. 

II.  Deponent  further  says,  that  this  action  is  brought 
upon  a  promissory  note  alleged  to  have  been  made  by  him, 
and  to  be  held  and  owned  by  the  plaintiff.    That  since  the 

joining  of  the  issue,  viz.,   on  the.... day  of ,   19.., 

this  defendant  paid  to  the  plaintiff  the  sum  of dollars 

in  full  payment  of  the  note  mentioned  in  the  complaint,  and 
of  the  costs  up  to  that  day,  accrued  therein.  [Or  otherwise 
state  new  facts.] 

2294.  Order  granting  leave  to  make  a  supplemental  an- 

swer. 

[Title.]  [At  a  special  term,  etc.] 

[Recitals  as  in  Form  2292.] 

ORDERED,  that  the  defendant  be  allowed  to  make  a 
supplemental  answer  herein,  setting  up  payment  of  the  note 
in  suit  [or,  as  proposed  by  him],  upon  payment  to  the  plaintiff 

of dollars  motion  costs;  such  answer  [or  comi.laint] 

100 


Forms  2295-2297.]  1586  [Chapter  CXXV 

to  be  served  upon  the  attorney  for  the  plaintiff  [or  defendant] 
within. ..  .days  from  the  entry  of  this  order  [the  issue  to 

stand  as  of  the. . .  .day  of ,  19. .] 

[Or  provide  that  supplemental  answer  already  served  stand 
without  further  service  as  inform  2292,  in  case  of  supplemental 
complaint.] 

2295.  Notice  of  motion  to  compel  reply. 

[Title.] 

Please  take  notice  that  upon  the  pleadings  in  this  action  the 
undersigned  will  move  the  court,  at  a  special  term  thereof  to 

be  held  at on  the    ....day  of ,   19..,   at    .... 

o'clock  in  the  forenoon,  or  as  soon  thereafter  as  counsel  may 
be  heard,  to  require  a  reply  to  the  new  matter  by  way  of 
avoidance,  set  up  in  the  answer  in  this  action,  or  for  such 
other  relief  as  may  be  just. 

[Date.]  G....  H 

Defendant's  Attorney. 

[Address.] 

[This  and  following  form  to  be  used  in  North  and  South  Da- 
kota when  such  matter  is  to  be  replied  to  only  when  directed  by 
the  court.  N.  Dak.  Rev.  Codes  1905  sec.  6863;  S.  Dak.  C. 
C.  P.  1908  sec.  130.] 

2296.  Order  thereon. 

[Title  of  cause.]  [As  a  special  term,  etc.] 

On  reading  and  filing  the  pleadings  herein,  and  notice  of 
this  motion  [and  proof  of  due  service],  and  on  motion  of 
G. . . .  H. .  .  .,  for  the  defendant,  after  hearing  E.  . . .  F. . . , 
[or,  no  one  appearing]  in  opposition: 

ORDERED,  that  the  plaintiff  reply  to  the  new  matter 
by  way  of  avoidance,  contained  in  the  answer  herein,  within 
twenty  days  from  service  of  a  copy  of  this  order. 

2297.  Affidavit  on  motion  to  dismiss  for  failure  to  file 

complaint  and  pay  state  tax  (Wis.  Stats.  1913, 
sec.  2632).^ 

[Title.] 
[Venue.] 

G H ,  the  defendant's  attorney,  being  duly  sworn, 

says  that  the  summons  was  served  in  this  action  on  the .... 


Chapter  CXXV.]  1587  [Forms  2298-2300. 

day  of ,  19..,  and  that  defendant's  answer  [or  de- 
murrer] thereto  was  served  on  the.  . .  .day  of 19. ., 

and  that  said  summons  has  not  been  filed  in  said  county,  nor 
the  state  tax  on  the  action  paid,  as  appears  by  the  annexed 
certificate  of  the  clerk  thereof. 

G....  H.... 
[Jurat.] 

2298.  Certificate  that  summons  is  not  filed,  nor  tax  paid 

(Wisconsin). 

[Title.] 

I,  M. .  . .  N ,  clerk  of  the court,  do  hereby  certi- 
fy that  the  summons  in  the  above  entitled  action  has  not 
been  filed  in  my  office  at  this  date,  nor  has  the  state  tax  on 
said  action  been  paid. 

[Date.]  L....M...., 

Clerk  of Court. 

2299.  Order  thereon  (Wisconsin). 

[Title.] 

It  appearing  to  my  satisfaction  that  the  summons  in  this 
action  has  not  been  filed,  nor  the  state  tax  on  said  action 
been  paid,  and  that  more  than  ten  days  has  elasped  since 
the  service  of  the  answer  [or  demurrer]  to  the  complaint 
herein : 

ORDERED,  that  this  action  be  dismissed  unless  the 
plaintiff  shall  pay  said  state  tax,  together  with  five  dollars 

costs  of  motion  to  the  defendant  on  or  before ,  19. . 

By  the  Court: 

N....  0....,  Judge. 

2300.  Notice  indorsed  on  pleading  returned  for  irregu- 

larity. 

Please  take  notice  that  the  within  answer  is  returned  as 
defective  and  irregular,  in  this,  that  it  is  not  folioed,  nor 

'  This   provision    is    peculiar    to  such  changes  as  are  necessary  to 

Wisconsin      In   some   states   it   is  bring  the  case  within  the  statute 

required  that  the  petition  or  com-  of  the  particular  state.   Minn.  Gen. 

plaint    be    filed    within    a    certain  Stats.  1913  sec.  7747;  district  court 

time,  or  by  a  certain  day  of  the  rule  XVI;   Iowa  Ann.   Code   1905 

term;  in  such  states  this  and  the  sec.  3515. 
following  forms  mav  be  u.=ed  with 


Forms  2301-2303.]  1588  [Chapter  CXXV. 

fairly  and  legibly  written,  and  that  separate  defenses  are  not 
separately  stated,  nor  plainly  numbered;  nor  do  they  refer 
to  the  causes  of  action  which  they  are  intended  to  answer, 
in  such  manner  that  they  may  be  intelligibly  distinguished 
[or  otherwise  state  the  irregularity.] 

[Date.]  [Signature.] 

[Address.] 

2301.  Notice  of  irregularity  in  respect  to  one  of  several 

persons  pleaxling  together. 

[Title.] 

Please  take  notice  that  I  object  to  the  answer  this  day 
served  on  me,  as  defective  and  irregular  on  the  part  of  the 
defendant  W.  /. .  X. . . .,  in  this,  that  it  is  not  verified  on 
his  part;  and  I  refuse  to  receive  it  as  his  answer. 

2302.  Notice  of  motion  to  require  attorney  to  receive 

pleading. 

[Title.] 

Please  take  notice  that  on  the  affidavits  annexed,  and  on 
the  pleadings  in  this  action,  the  undersigned  will  move  the 

court,  at  a  special  term  to  be  held  at on  the .  .  .  .day  of 

,   19..,  etc.,  to  require  the  plaintiff  to  receive  the 

answer  heretofore  served  upon  his  attorney,  or  that  upon  his 
refusal  to  receive  the  same,  such  answ^er  may  stand  as  the 
answer  in  the  cause,  and  as  duly  served  on  the.  .  .  .day  of 

,  19. .;  or  for  such  other  relief  as  may  be  just,  with 

the  costs  of  this  motion. 

[Date.] 

[Address.]  [Signature.] 

2303.  Order  thereon. 

[Title.]  [At  a  special  term,  etc.] 

On  reading  and  filing  [motion  papers],  and  upon  motion  of 
G . . . .  H . . . . ,  defendant's  attorney,  after  hearing  E . . . . 
F. . . .,  plaintiff's  attorney  in  opposition: 

ORDERED,  that  the  plaintiff  receive  the  answer  hereto- 
fore served  upon  him  in  this  action,  if  served  anew,  together 
with  a  copy  of  this  order  [within. . .  .days  after  the  date  of 


Chapter  CXXV.]  1589  [Forms  2304, 2305. 

this  order];  or  that,  upon  his  refusal  so  to  do,  such  answer 
stand  as  the  answer  in  the  cause,  and  as  duly  served  on  the 
. . .  .day  of ,  19. . 


2304.  Notice  of  motion  to  strike  out  irrelevant,  redun- 

dant or  scandalous  matter. 

[Title.] 

Take  notice  that  upon  the  pleadings  in  this  action  [and 
the  affidavit  of  C . . . .  D .  . . .  herewith  served],  the  under- 
signed will  move  the  court,  at  a  special  term  to  be  held  at 

on  the ....  day  of ,  19 .  . ,  at ... .  o'clock  in  the 

. . .  .noon,  or  as  soon  thereafter  as  counsel  can  be  heard,*  to 
strike  out  all  of  the  third  paragraph  of  the  complaint  [or, 
answer]  herein,  and  so  much  of  the  fifth  paragraph  as  is 

contained  between  the  word  "...."  and  the  word  ". " 

[or  so  much  thereof  as  is  contained  between  the  word  "...." 
in  foKo. . . .,  and  the  word  "....,"  in  foilo  ....],  both  in- 
clusive, as  irrelevant  and  redundant  [or  as  scandalous], 
and  for  such  other  relief  as  may  be  just  [with  costs]. 

[Date.]  [Signature.] 

[Address.] 

2305.  Order  thereon. 

[Title.]  [At  a  special  term,  etc.] 

On  reading  and  filing  [describe  motion  papers]  and  on 
motion  of  G. ...  H ....  for  the  [defendant],  and  after  hearing 
E. . . .  F. . . .  in  opposition  thereto  [or,  and  on  proof  of  due 
service  of  notice  of  the  motion,  and  no  one  appearing  in 
opposition  thereto]: 

ORDERED,  that  the  matter  contained  in  the  [complaint] 
in  this  action,  from  the  word  "and,"  in  folio  ten  thereof,  to 
the  word  "plaintifT,"  in  folio  twenty-one,  be  stricken  out  as 
redundant  [or  irrelevant];  and  that  as  to  the  matter  con- 
tained in  the  second  paragraph,  said  motion  be  denied,  and 
that  the  defendant  have dollars  costs  of  this  motion. 


Forms  2306-2308.]  1590  [Chapter  CXXV. 

2306.  Notice  of  motion  to  compel  plaintiff  to  elect  be- 

tween several  counts  setting  forth  the  same 
cause  of  action. 

[Title.] 

Please  take  notice  that  upon  the  summons  and  complaint 
in  this  action  [and  on  an  affidavit,  of  which  a  copy  is  herewith 
served],  the  undersigned  will  move  the  court,  at  a  special 

term  to  be  held  at on  the. . .  .day  of ,  19. .,  at 

o'clock  in  the. .  .  .noon,  or  as  soon  thereafter  as  counsel 

can  be  heard,  that  the  plaintiff  be  required  to  elect  between 
the  first  stated  cause  of  action  and  the  second  stated  cause 
of  action  in  the  complaint,  and  state  which  he  will  rely  on; 
and  that  on  such  election  the  other  be  stricken  out;  or  in 
default  of  so  electing,  then  that  the  second  stated  cause  of 
action  be  stricken  out  as  redundant;  and  for  such  other  or 
further  reUef  as  may  be  just  [and  for  the  costs  of  this  motion]. 

[Date.]  [Signature.] 

[Address.] 

2307.  Afl&davit  for  same. 

[Title  of  the  cause.] 
[Venue.] 

C . . . .  D . . . .,  being  duly  sworn,  says: 

I.  That  he  is  the  defendant  in  the  above  entitled  action. 
[Or  if  otherwise,  show  in  some  way  deponent's  knowledge  of 
the  circumstances  involved.] 

II.  That  the  plaintiff's  complaint  herein  purports  to  set 
forth  two  causes  of  action,  but  that  only  one  transaction  of 
the  nature  mentioned  in  either  of  the  supposed  causes  of 
action  set  up  in  the  complaint  ever  occurred  between  the 
defendant  and  the  plaintiff,  and  that  the  transactions  men- 
tioned in  both  of  the  said  supposed  causes  of  action  are  in 
reality  one  and  the  same. 

C D.... 

[Jurat.] 

2308.  Order  requiring  election. 

[Title.] 

The  motion  of  the  defendant  that  the  plaintiff  be  required 
to  elect  as  to  which  cause  of  action  alleged  in  his  complaint 


Chapter  CXXV.]  1591  [Forms  2309,  2310. 

he  will  rely  upon  on  the  trial,  coming  on  to  be  heard  on  the 

day  of ,  19. . ;  and  on  reading  the  complaint  and 

the  affidavit  of  C. . . .   D. . . .,  now  filed  herein,  and  after 

hearing  G H . . . .   for  the  motion,  and  E . . . .   F . . . . 

opposing,  and  being  advised  in  the  premises: 

ORDERED,  that  the  plaintiff  be  required  to  elect,  within 
. . .  .days  after  service  of  a  copy  of  this  order  on  his  attorney, 
upon  which  of  the  several  causes  of  action  stated  in  his  com- 
plaint he  will  rely  on  the  trial,  and  that  he  make  such  election 
by  written  notice  served  upon  the  defendant's  attorney. 

That  if  plaintiff  fails  to  so  elect,  the  second  and  third 
causes  of  action  be  stricken  out  as  redundant  and  irrele- 
vant. 

That  defendant  have dollars,   his  costs  of  this 

motion. 

By  the  Court: 

J K Judge. 

2309.  Notice  of  motion  to  strike  out  answer. 

[Title  of  cause.] 

Take  notice  that  on  the  affidavit  herewith  served,  and  on 
the  pleadings  in  this  action,  the  undersigned  will  move  the 

court,  at  a  special  term  to  be  held  at on  the. . .  .day 

of ,   19..,  at. ..  .o'clock  in  the.... noon,  or  as  soon" 

thereafter  as  counsel  can  be  heard,  to  strike  out  the  answer 
herein  as  sham  [or,  the  first  defense  in  the  answer  herein  as 
sham,  and  the  second  defense  as  irrelevant];  or  for  such  other 
rehef  as  may  be  just  [with  costs]. 

[Date.]  E....  F...., 

[Address.]  Plaintiff's  Attorney. 

2310.  Affidavit  to  falsity  of  answer. 

[Title  of  the  cause.] 
[Venue.] 
A. . . .  B . . . .,  being  duly  sworn,  says: 

I.  That  he  is  the  plaintiff  in  the  above  entitled  action. 

II.  That  he  has  read  the  answer  of  the  defendant  Y . .  . . 
Z . . . .  herein,  and  that  the  defense  of  payment  therein  set 
up  is  wholly  and  absolutely  false;  that  the  defendant  has 
never  paid,  or  in  any  way  satisfied,  the  demand  set  up  in  the 


Forms  2311,  2312.]  1592  [Chapter  CXXV. 

complaint,  nor  any  part  thereof;  nor  has  he  ever  paid,  by 
himself  or  his  agents,  to  the  plaintiff,  or  to  any  of  his  agents, 
any  part  of  the  sum  alleged  by  the  said  answer  to  have  been 
paid. 

III.  That  the  only  person  ever  employed  by  deponent  to 
ask  or  receive  money  from  the  defendant  is  one  E . .  .  .  F .  . . . , 
whose  affidavit  is  hereto  annexed;  and  that,  to  the  best  of 
deponent's  knowledge  and  behef,  no  other  person  ever  asked 
or  received  anything  from  the  defendant  for  account  of  this 
deponent. 

[Or  That  the  statements  of  said  answer  that  [here  give 
them]  are  utterly  and  absolutely  false,  and  that  said  answer 
is  a  sham  answer;  and,  on  the  contrary  of  said  statements, 
the  affiant  alleges  [here  contradict  the  sham  matter  set  up]. 

A....B.... 
[Jurat] 

[It  will  be  wise  to  have  corroborative  affidavits.] 

2311.  Corroborative  affidavit. 

[Title  of  the  cause.] 
[Venue.] 
E , . . .  F . . . . ,  being  duly  sworn,  says : 

I.  That  he  is  a  clerk  in  the  employment  of  the  plaintiff, 
and  attends  to  the  collection  of  the  debts  due  to  the  latter. 

II.  That  he  has  frequently  asked  the  defendant  for  pay- 
ment of  the  amount  demanded  by  the  complaint  in  this 
action,  and  the  defendant  has  always  refused  to  pay  the 
same,  and  never  has  paid  any  part  thereof  to  deponent;  nor, 
so  far  as  deponent  is  informed  and  believes,  to  any  other 
person. 

E....  F.... 
[Jurat.] 

2312.  Order  thereon. 

[Recitals  as  in  Form  2305.] 

ORDERED,  that  the  answer  of  the  defendant   C 

D .  .  ,  .  in  this  action  be  stricken  out  as  sham,  with 

dollars  costs  to  plaintiff. 


Chapter  CXXV.]  1593  [Forms  2313-2315. 

2313.  Notice  of  motion  to  strike  out  one  defense  as  sham, 

and  for  judgment  upon  the  other  as  frivolous. 

[As  in  Form  2304  to  the  *,  continuing]:  That  the  first  de- 
fense in  the  answer  herein  be  struck  out  as  sham  or  irrelevant, 
and  that  the  second  defense  be  overruled  as  frivolous,  and 
that  judgment  be  given  for  the  plaintiff  thereon;  or  for  such 
[etc.,  concluding  as  in  Form  2304]. 

2314.  Notice  of  motion  for  judgment  on  frivolous  plead- 

ing (Wis.  Stats.  1913  sec.  2681). 

[Title.] 

SIR:  Please  take  notice  that  upon  the  pleadings  heretofore 

served  herein,   the  plaintiff  will  move  the court,   at 

the  next  regular  term  thereof,  to  be  held  in  the of 

,  on  the  day  of ,  19.  .,  at  the  opening  of  court 

on  that  day,  or  as  soon  thereafter  as  counsel  can  be  heard, 
for  an  order  striking  out  the  answer  of  the  defendant  herein, 
as  sham,  frivolous  and  irrelevant,  and  for  judgment  or  such 
other  or  further  order  or  relief  as  the  court  may  grant. 
[Date.]  E....  F...., 

[Address.]  Plaintiff's  Attorney. 

2315.  Order  striking  out  an  answer  in  part  as  frivolous 

and  in  part  as  irrelevant  (Wis.  Stats.  1913  sec. 
2684). 

[Title.] 

[Recitals  as  in  Form  2305.] 

ORDERED,  that  the  matter  in  the  answer  of  the  defend- 
ant herein  alleged  as  a  first  defense  be  stricken  out  as  frivo- 
lous, and  that  the  following  matter  alleged  in  the  second 
defense  in  said  answer  be  stricken  out  as  irrelevant  [here 
specify  the  matter  to  be  stricken  out,  with  particularity],  [and 
that  the  defendant,  within. . ,  .days  after  the  service  of  this 
order  on  his  attorney,  serve  an  amended  answer,  omitting 
therefrom  the  matter  hereby  stricken  out]  and  that  he  pay 

dollars,  the  costs  of  this  motion. 

By  the  Court: 

J . . . .  K . . . . ,  Circuit  Judge. 


Forms  2316-2319.]  1594  [Chapter  CXXY. 

2316.  Order  for  judgment  on  frivolous  pleading. 

On  reading  and  filing  the  pleadings  in  this  action,  and 
notice  of  this  motion  [and  proof  of  due  service  thereof],  and 
on  motion  of  G. . . .  H. . . .  for  the  plaintiff,  and  after  hearing 
E . . . .  F . . . .  [or,  no  one  appearing]  in  opposition  thereto : 

ORDERED,  that  the  answer  [or  demurrer]  of  the  de- 
fendant Y. . . .  Z. . . .  herein  be  stricken  out  as  frivolous;  * 
and  that  the  plaintiff  have  judgment  thereon  for  the  relief 
demanded  in  the  complaint,  with  costs  of  this  action,  and 
dollars  costs  of  this  motion. 

2317.  The  same,  reserving  leave  to  amend. 

[As  in  preceding  form  to  the  *,  continuing]:  with  leave  to 
the  defendant  to  answer  [anew]  within ....  days  after  service 
of  this  order  upon  [state  terms];  and  that  if  he  fail  to  do  so, 
that  the  plaintiff  have  judgment  thereon  for  the  relief  de- 
manded in  the  complaint,  with  costs  of  this  action,  and 
dollars  costs  of  this  motion. 

2318.  Notice  of  motion  by  plaintiff  for  judgment  on  the 

pleadings. 

[Title.] 

SIR:  Please  take  notice  that  upon  the  complaint  and 
answer  in  this  action,  the  undersigned  will  move  the  court 
at  the  next  regular  [or  special]  term  thereof,  to  be  held  at  the 

court   house   in   the of ,    county   of ,    on 

the. . .  .day  of ,  19.  .,  at  the  opening  of  court  on  that 

day,  or  as  soon  thereafter  as  counsel  can  be  heard,  for  the 
judgment  demanded  in  the  complaint,  and  such  other  order 
or  relief  as  the  court  may  grant. 

[Date.]  E....  F...., 

[Address.]  Plaintiff's  Attorney. 

2319.  Notice  of  application  for  judgment  for  amount  ad- 

mitted by  answer  to  be  due  (Wis.  Stats.  1913 
sec.  2892). 

[Title  of  action.] 

SIR:  Please  take  notice  that  on  the  complaint  and  answer 

herein  the  undersigned  will,  on  the.  .  .  .day  of 19. ., 

at. ..  .o'clock  in  the....  noon,  apply  to  the  clerk  of  said 


Chapter  CXXV.]  1595  [Forms  2320, 2321. 

court,  at  his  office,  in  the  city  of ,  in  said  county,  to 

enter  judgment  for  the  plaintiff  herein,  for  the  amount  which 
is  admitted  by  the  answer  to  be  due,  to-\vit,  the  sum  of 
dollars  [or,  for  the  amount  claimed  in  the  com- 
plaint, after  deducting  the  amount  of  the  defendant's 
counter-claim  or  set-off],  to-wit,  the  sum  of dollars. 

[Date.]  E....  F...., 

Attorney  for  Plaintiff, 

To  G. . . .  H ,  Esq.,  ,  Wis. 

Attorney  for  Defendant. 

2320.  Notice  of  motion  that  the  defendant  satisfy  that 

part  of  the  plaintiff's  claim  admitted  to  be  just 
(Wis.  Stats.  1913  sec.  2892). 

[Title.] 

SIR:  Please  take  notice  that  upon  the  complaint  and 
answer  heretofore  served  herein,  the  undersigned  will  move 
the  court  at  the  next  regular  [or  special]  term  thereof,  at  the 

court  house  in  the.... of ,   in county,   on  the 

. . .  .day  of ,  19.  .,  at.  .  .  .o'clock  in  the.  . .  .noon,  or  as 

soon  thereafter  as  counsel  can  be  heard,  for  an  order  re- 
quiring the  defendant  to  satisfy  that  part  of  the  claim  of  the 
plaintiff  admitted  by  the  defendant  in  his  answer  to  be 
just,  to-wit,  [here  specify  the  part  admitted];  and  for  such  other 
order  or  relief  as  may  be  properly  granted. 

[Date.]  E....  F...., 

Plaintiff's  Attorney, 

To  G H ,  Esq.,  Wis. 

Defendant's  Attorney. 

2321.  Order  thereon. 

[Recitals  as  in  Form  2305.] 

On  motion  of  0. . . .  P. . . .,  plaintiff's  attorney: 
ORDERED,  that  the  defendant  herein  satisfy  that  part 
of  the  plaintiff's  claim  which  he  admits  by  his  answer  to  be 
just,  by  [paying  to  the  plaintiff,  within.  .  .  .days  after  the 

service  of  this  order,  the  sum  of dollars]. 

By  the  Court: 

J K ,  Judge. 


Form  2322.]  1596  [Chapter  CXXV. 

2322.    Notice  of  motion  to  strike  answer  from  the  files 
because  not  verified. 

[Tiile.\ 

To  C. . . .  D. . . .,  defendant  above  named  and  to 

E . . . .  F .  .  . . ,  his  attorney. 

TAKE  NOTICE  that  the  plaintiff  above  named  will  on 

. . .  .the. . .  .day    of ,    19..,    at   the    court    house    in 

at  the  hour  of . . ,  .o'clock  A.  M.,  or  as  soon  thereafter 

as  counsel  can  be  heard,  move  the  court  to  strike  from  the  files 
herein  the  answer  filed  by  you  on  the  ground  that  said  answer 
is  not  verified  [or,  defectively  verified  in  this  specifying 
clearly  the  defect].  Said  motion  will  be  based  upon  the  said 
answer  and  upon  the  pleadings  and  papers  filed  in  the  action, 

[Date.]  L M...., 

Plaintiff's  Attorney. 


CHAPTER  CXXVI. 


REVIVAL  OR  CONTINUANCE  OF  ACTIONS. 


2323.  Notice  of  motion  on  death  or 

disability  of  plaintifT. 

2324.  Petition  by   receiver  or   as- 

signee of  plaintiff's  title,  to 
continue  action  in  his  own 
name. 

2325.  Petition    by    executor,    ad- 

ministrator, or  heir  of  de- 
ceased  plaintiff. 

2326.  Order  for  revivor  and  con- 

tinuance. 

2327.  Notice  of  motion  for  leave 

to  continue  action,  and 
serve  supplemental  com- 
plaint. 

2328.  Order,  by  consent,  substitut- 

ing executors,  without 
prejudice  to  proceedings 
already  had. 

2329.  Petition  by  surviving  plain- 

tiff' to  compel  representa- 
tive of  deceased  co-plain- 
tiff to  continue. 

2330.  Petition    by    defendant    to 

have  action  continued, 
plaintiff  having  died,  and 
action  not  having  been  re- 
vived on  his  behalf. 

2331.  Order  to  show  cause,  on  the 

foregoing  petition. 


2332. 
2333. 

2334. 


2335. 
2336. 
2337. 


2338. 


2339. 
2340. 


2341. 

2342. 
2343. 


Order  thereon,  absolute. 

Another  form,  in  the  alterna- 
tive. 

Notice  of  motion  to  declare 
action  dismissed,  unless 
the  proper  parties  revive 
it.     (Wisconsin.) 

Affidavit. 

Order  thereon. 

Notice  of  filing  supplemental 
complaint  and  revival  of 
action  by  plaintiff  against 
personal  representatives  of 
deceased  defendant.  (Wis- 
consin.) 

Affidavit  of  attachment  is- 
sued, and  death  of  defend- 
ant before  publication  of 
summons  completed. 

Order  thereon. 

Stipulation  in  action  against 
corporation,  on  the  expira- 
tion of  its  charter,  1o  con- 
tinue in  the  name  of  new 
corporation. 

Notice  of  motion  to  substi- 
tute officer's  successor. 

Affidavit  therefor. 

Order  thereon. 


The  codes  generally  provide  that  any  action  which  sur- 
vives shall  not  abate  by  the  death,  marriage,  or  other  dis- 
ability of  a  party,  or  by  the  transfer  of  interest  or  devolution 
of  liability;  but  may  be  continued  on  application  to  the  court 
in  the  name  of  the  proper  party. ^ 


iWis.  Stats.  1913  sees.  2800- 
2810;  Ariz.  R.  S.  1913  sees.  460-466; 
Ark.  Dig.  of  Stats.  1904  sees.  6001, 


6019,  6020,  6298;  Cal.  C.  C.  P. 
1906  sec.  385;  Colo.  Code  Ann.  1911 
sec.  15;  Idaho  Rev.  Codes  1908  sec. 


Forms  2323,  2324.]  1598  [Chapter  CXXVI. 

In  case  the  motion  is  made  on  behalf  of  the  plaintifT  it 
should  be  founded  not  only  upon  an  affidavit  showing  the 
facts  as  to  the  transfer  of  interest  or  the  devolution  of  the 
liability  but  by  the  proposed  supplemental  complaint  stat- 
ing those  facts,  as  well  as  the  facts  "constituting  the  original 
cause  of  action. 

2323.  Notice  of  motion  on  death  or  disability  of  plaintiff. 

[Title  of  original  action.] 

Please  take  notice  that  on  the  annexed  verified  petition, 
and  on  the  pleadings  in  this  cause  and  upon  the  proposed 
supplemental  complaint  herewith  served,  the  undersigned 

will  move  the  court,  at  a  special  term  to  be  held  at 

on  the day  of ,  19. .,  at o'clock  in  the 

noon,  or  as  soon  thereafter  as  counsel  can  be  heard,  for  an  or- 
der directing  the  *  above  entitled  action  to  be  continued  by 

C D [describing  his  official  or  trust  capacity,  if  any] 

as  plaintiff,  in  place  of  A B ,  plaintiff  above  named, 

and  granting  the  said  C D leave  to  serve  and  file 

the  said  proposed  supplemental  complaint,  and  for  such  other 
relief  as  may  be  just. 

[Date.] 

[Address.]  [Signature.] 

2324.  Petition  by  receiver  or  assignee  of  plaintiff  s  title, 

to  continue  actior  in  his  own  name. 

[Title.] 

To  the court,  held  in  and  for  the  county  of  .... 

THE  PETITION  of  C. . .  D shows  to  the  court: 

I.     That  on  or  about  the  ....  day  of ,  19. .,  one 

A. . . .  B . . . .,  above  named,  commenced  the  above  entitled 
action  in  this  court  *  for  [here  state  briefly  the  cause  of  action, 
and  then  proceed  to  show  what  stage  the  cause  is  in,  e.  g.,  thus], 
that  issue  was  joined  therein  by  the  service  of  the  defend- 

4108;   Iowa  Ann.   Code   1897  sec.  Okla.  Comp.  Laws  1909  sec.  5572; 

3443-3445;  3476;  Kans.  Gen.  Stats.  Oregon   Laws   1910  sec.   38;   Tex. 

1909  sec.  5632;  Mont.  Rev.  Codes  Civ.  Stats.  Ann.   1913,   art.   1886- 

1907  sec.  6494;  Minn.  Gen.  Stats.  1901;  Utah  Comp.  Laws  1907  sec. 

1913  sec.  7685:  Mo.  R.  S.  1909  sec.  2920;  Wash.  Rem.  and  Bal.  Code 

1916,  1924;  Neb.  R.  S.  1913,  sec.  1910  sec.  193;  Wyo.  Comp.  Stats. 

7603;  N.  Dak.  Rev.  Codes  1905  sec.  1910  sec.  4330. 
6820;  S.  Dak.  C.  C.  P.  1908  sec.  91; 


Chapter  CXXVL]  1599  [Form  2325. 

ant's  answer  on  the  ....  day  of ,  19. . ;  that  said  ac- 
tion was  referred,  by  order  of  this  court,  on  the  ....  day  of 

,  19. .,  to  R. . . .  F. . . .,  Esq.,  to  hear  and  determine 

the  same;  that  the  trial  thereof  is  now  pending  and  undeter- 
mined before  him. 

II.  That  pending  said  action,  and  on  the  ....  day  of . . . ., 
19. .,  upon  appUcation  duly  made  by  0. . . .  P. . . .,  a  judg- 
ment-creditor of  said  A. . . .  B. . . .  in  proceedings  supple- 
mentary to  execution,  your  petitioner  was,  by  the  order  of 
[name  court  or  officer]  duly  appointed  receiver  of  the  property 
of  said  A . . . .  B . . . . 

[Or:  II.  That  pending  said  action,  and  on  the  .... 
day  of ,  19. . .,  said  A. . . .  B. . , ,,  plaintiff  in  said  ac- 
tion, duly  assigned  and  transferred  the  note  in  the  complaint 
mentioned,  for  a  valuable  consideration,  to  your  petitioner, 
who  is  now  the  lawful  owner  and  holder  thereof.] 

WHEREFORE  your  petitioner  prays  that  he  may  be 
substituted  as  plaintiff  in  said  action  in  place  of  said  A . . . . 
B. . . .,  and  that  said  action  may  be  continued  in  his  name, 
and  that  your  petitioner  be  given  leave  to  serve  and  file  the 
proposed  supplemental  complaint  attached  hereto  and  that 
he  have  such  other  relief  as  may  be  just. 

[Date.]  [Signature.] 

[Venue.] 

G D being  duly  sworn,  says  that  he  has  read  [or 

heard  read]  the  foregoing  petition  subscribed  by  him,  and 
knows  the  contents  thereof;  and  that  the  same  is  true  of  his 
own  knowledge,  except  as  to  the  matters  therein  stated  on 
information  and  belief,  and  as  to  those  matters  he  believes  it 
to  be  true. 

[Signature.] 
[Jurat.] 

2325.    Petition  by  executor,  administrator,  or  heir  of  de- 
ceased plaintiff. 

[Title  as  in  Form  2323.] 

To  the court  in  and  for  the  county  of 

THE  PETITION  of  C...    D....   and  E....   F 

executors  of  the  last  will  and  testament  [or,  administrators]  of 
the  estate  of  A ... .  B . . . . ,  deceased  [or,  heirs  of  A ....  B ... . 
deceased],  shows  to  the  court: 


Form  2325.]  1600  [Chapter  CXXVI. 

I.  That  on  or  about  the  ....  day  of ,  19.  .,  one 

A . . . .  B .  . . ,  commenced  the  above  entitled  action  in  this 
court  for  [state  the  cause  of  the  action,  and  its  condition,  as 
in  Form  1766]. 

II.  That  said  A B died  on  or  about  the day 

of ,  last,  and  pending  said  action,  having  first  duly 

made  and  published  his  last  will  and  testament,  by  which, 
among  other  things,  he  appointed  your  petitioners  his 
executors;  that  your  petitioners  have  proved  said  will,  and 
letters  testamentary  thereon  were  duly  made  and  issued  to 

them  by  the court  of  the  county  of on  the 

day  of ,  19. .,  and  that  they  have  duly  qualified 

and  undertaken  the  execution  thereof. 

[Or,  where  the  application  is  by  administrators :  II.  That 
said  A . . .  ,  B .  . . .  died  intestate  on  or  about  the  ....  day  of 
,  19.  .,  and  pending  said  action;  and  that  letters  of  ad- 
ministration upon  his  estate  were  duly  made  and  issued,  on 

the day  of ,  last,  by  the  ....  court  of  the  county 

of ,  to  the  petitioners,  who  have  qualified  and  entered 

upon  their  duties  as  such  administrators.] 

III.  That  at  the  time  of  his  death  the  said  note  [or  other 
cause  of  action],  was  still  owned  by  the  said  A,  . .  .  B. . . . ; 
and  the  amount  thereof,  with  the  interest  thereon,  is  still 
due  from  the  said  defendant;  and  the  said  [note]  is  now  held 
by  these  deponents,  and  forms  a  part  of  the  assets  in  their 
hands  belonging  to  the  estate  of  said  A....  B....,  de- 
ceased. 

[Or,  where  the  application  is  by  heirs,  substitute  for  II  and 
III  above:   That  said  A. ...  B  ...  .  died  intestate  on  or  about 

the  ....  day  of ,  19.  .,  and  pending  said  action,  and 

leaving  your  petitioners,  who  are  his  only  children,  his  heirs- 
at-law,  and  as  such  they  inherited  all  his  interest  and  estate 
in  the  lands  which  are  the  subject  of  said  action.] 

IV.  That  your  petitioners  are  desirous  of  continuing  the 
action  above  referred  to,  as  executors  [or  administrators,  or 
heirs]  of  said  A . . . .  B . .  .  . ,  against  said  Y .  .  .  .  Z . . .  .  and 
to  serve  and  file  the  supplemental  complaint  hereto  attached. 

WHEREFORE,  your  petitioners  pray  that  said  action 
may  be  so  continued  by  them,  and  that  your  petitioners  may 
have  leave  to  serve  and  file  the  annexed  proposed  supple- 


Chapter  CXXVL]  1601  [Form  2326. 

mental  complaint  herein,  and  for  such  further  relief  as  may 
be  just. 

[Date.]  [Signatures.] 

[Verification  as  in  last  preceding  form.] 

[If  the  application  be  made  more  than  a  year  after  the  death, 
the  moving  affidavits  should  show  facts  excusing  the  delay.] 

2326.    Order  for  revivor  and  continuance. 

[Title.]  [At  a  special  term,  etc.] 

On  reading  and  filing  the  petition  of  C . . . .  D dated 

the  ....  day  of ,  19. .,  and  the  pleadings  in  this  ac- 
tion and  the  proposed  supplemental  complaint  therein  [and 
proof  of  due  service  of  notice  of  this  motion],  and  on  motion 

of  Q R counsel  for  said  C D assignee  [or 

receiver,  or  executor,  or  administrator,  or  heir]  of  the  plain- 
tiff, deceased,  and  after  hearing  0 . . . .  P . . . . ,  of  counsel  for 
the  defendant  [or  no  one  appearing]  in  opposition,  * 

ORDERED,  that  the  above  entitled  action  be  continued 

by  C . . . .  D as  plaintiff  herein,  in  the  place  of  A . . . . 

B. . . .,  plaintiff  above  named,  and  that  the  above  entitled 
action  be  continued  by  him  as  receiver  [or  otherwise]  of  said 
A. . . .  B. . . .  and  that  he  be  allowed  to  make  and  file  the 
said  proposed  supplemental  complaint  and  that  the  service 
thereof  heretofore  made  upon  this  motion  stand  as  the  com- 
pleted service  thereof. 

[In  Nebraska  the  order  should  be  conditional  and  may  be  as 
follows  after  the  *] : 

ORDERED,  that  the  defendants  show  cause  before  this 

court,  at  the  court  house  in  the  ....  of on  the  first 

day  of  the   term,  to-wit,  the   ....  day  of   , 

19. .,  or  as  soon  thereafter  as  counsel  can  be  heard,  why  the 
said  action  should  not  be  revived  in  the  name  of  R , . . . 
G . . . .  as  receiver  [or  otherwise]  of  the  said  A . . . .  B . . . . ,  and 
that  if  they  fail  so  to  do  the  action  shall  stand  revived  in  the 
name  of  R ....  G ....  as  receiver  [or  otherwise]  as  plaintiff. 

[Date.]  By  the  Gourt: 

J. . . .  K. . . .,  Judge. 
101 


Forms  2327-2329.]  1602  [Chapter  CXXVI. 

2327.  Notice  of  motion  for  leave  to  continue  action,  and 

serve  supplemental  complaint. 

[Title.] 

Take  notice  that  on  the  affidavit  of  C . . . .  D . . . .  and  the 
proposed  supplemental  complaint  of  which  copies  are  here- 
with served  upon  you,  and  on  the  pleadings  in  this  action, 
C . . . .   D . . . . ,  as  executor  of  the  plaintiff,  will  move  the 

court,  at  a  special  term  thereof  to  be  held  at in 

on  the  ....  day  of ,  19. .,  at  ....  o'clock  in  the 

noon,  or  as  soon  thereafter  as  counsel  can  be  heard,  for  leave 
to  continue  this  action  in  the  name  of  the  said  [executor]  as 
plaintiff,  and  to  serve  and  file  said  supplemental  complaint 
in  this  action;  or  for  such  other  or  further  relief  as  may  be  just. 

[Date.]  0....  P...., 

Attorney  for  C . . . .  D . . . ., 

[Address.]  Executor. 

2328.  Order,  by  consent,  substituting  executors,  without 

prejudice  to  proceedings  already  had. 

[Title.]  [At  a  special  term,  etc.] 
On  reading  and  fiUng  the  affidavit  of  M ....  N show- 
ing the  death  of  A ... .  B . .  .  . ,  the  plaintiff  in  the  above  en- 
titled action,  and  the  granting  of  letters  testamentary,  under 
and  by  virtue  of  his  last  will  and  testament,  to  C .  . .  .  D . . . . 

and  E . . . .  F . . . . ,  by  the court  of county,  and 

on  motion  of  M N.  . . .,  plaintiff's  attorney  *  [the  de- 
fendant's attorney  consenting  thereto];  or, 

ORDERED,  that  this  action  be  and  the  same  is  hereby  re- 
vived and  continued  in  the  name  of  the  said  C .  . . .  D . . .  . 
and  E . . . .  F . . .  . ,  executors  of  the  last  will  and  testament  of 
A. . .  .  B. . . .,  deceased,  as  plaintifTs;  and  that  the  said  ex- 
ecutors be  and  they  hereby  are  substituted  as  plaintiffs  in 
the  place  and  stead  of  the  said  A. . . .  B . . . .,  deceased,  and 
that  such  revivor  and  continuance  be  without  prejudice  to 
any  of  the  proceedings  already  had  in  this  action. 

2329.  Petition  by  surviving  plaintiff  to  compel  repre- 

sentative of  deceased  co-plaintiff  to  continue. 

[State  action  by  two  plaintiffs  and  death  of  one,  leaving  joint 
interest  in  his  representatives  and  the  survivor;  see  next  suc- 
ceeding form  to  the  *,  and  continue]:  the  said  action  has  not 


Chapter  CXXVL]  1603  [Form  2330. 

been  revived  or  continued,  or  anything  done  therein;  and 
that  said  [representative]  refuses  to  allow  your  petitioner  to 
continue  said  action  in  his  name  as  administrator,  as  one  of 
the  plaintiffs. 

WHEREFORE  your  petitioner  prays  for  an  order  re- 
quiring the  said  [representative]  to  join  your  petitioner  in  an 
application  to  have  the  said  action  revived  and  continued  in 
the  name  of  the  said  [representative]  as  administrator  as 
aforesaid,  and  this  petitioner  as  plaintiff,  by  a  certain  time 
therein  to  be  specified;  or  that  your  petitioner  be  allowed  to 
take  such  proceedings  as  may  be  necessary  to  revive  and  con- 
tinue said  action,  making  the  said  [representative]  adminis- 
trator as  aforesaid  a  party  defendant  in  said  action. 

[Date.]  [Signature,] 

[Verification  as  in  Form  2324.] 

2330.  Petition  by  defendant  to  have  action  continued, 
plaintiff  having  died,  and  action  not  having 
been  revived  on  his  behalf. 

[Title.] 

To  the court,  held  in  and  for  the  county  of 

THE    PETITION    of   Y....    Z defendant   above 

named,  shows  to  this  court: 

I.  That  on  or  about  the  ....  day  of ,  19 . . ,  A . . . . 

B . . . .  above  named  commenced  an  action,  in  this  court, 
against  this  defendant  for  [here  state  the  cause  of  action  and 
its  condition,  as  in  Form  2324.] 

II.  That  as  petitioner  is  informed  and  believes.  A.... 

B plaintiff  above  named,  died  on  or  about  the   .... 

day  of ,  last,  having  first  made  and  published  his  last 

will  and  testament  in  due  form  of  law,  by  which  among  other 
things,  he  appointed  C . . . .  D  . . .  .  and  E .  .  .  .  F .  . . .  his 
executors;  that  they  have  proved  said  will,  and  taken  upon 
themselves  the  execution  thereof;  but,  to  the  best  of  your 
petitioner's  information  and  belief,  *  have  failed  to  make 
any  application  to  have  the  above  entitled  action  continued 
by  them  as  plaintiffs. 

WHEREFORE  your  petitioner  prays  that  the  above  en- 
titled action  may  be  continued  in  their  names,  or  that  the 
complaint  herein  be  dismissed,  so  far  as  their  interests  are 
concerned,  and  that  your  petitioner  have  judgment  thereupon 


Forms  2331-2333.]  1604  [Chapter  CXXVI. 

against  the  said  C . . . .  D . . . .  and  E . . . .  F . . . . ,  as  executors 
aforesaid,  for  the  costs  of  such  action;  or  for  such  other  order 
as  may  be  just. 

[Signature.] 
[Verification  as  in  Form  2324.] 

2331.  Order  to  show  cause,  on  the  foregoing  petition. 

On  the  within  petition,  let  the  plaintiffs  show  cause  at  a 

special  term,  to  be  held  at on  the day  of 

19..,  at  ....  o'clock  in  the  forenoon,  why  the  above  en- 
titled action  should  not  be  continued  in  the  names  of  C . . . . 
D . . . .  and  E . . . .  F . . . . ,  executors  above  named,  or  the 
complaint  herein  be  dismissed,  so  far  as  the  interests  of  said 
executors  are  concerned,  with  costs  [or  why  the  petition 
should  not  be  granted]. 

2332.  Order  thereon,  absolute. 

[As  in  Form  2326  to  the  *,  continuing]: 

ORDERED,  that  the  above  entitled  action  be  continued 
in  the  names  of  C . . . .  D . . . .  and  E . . . .  F . . . .  as  executors 
of  A, . . .  B. . . .,  plaintiff  above  named  [or,  that  the  com- 
plaint herein  be  dismissed  so  far  as  the  interests  of  G . . . . 
D . . . .  and  E . . . .  F . . . . ,  executors  of  A ... .  B . . . . ,  plaintiff 
above  named,  are  concerned;  that  the  defendant  have  leave 

to  enter  judgment  against  said  C.  .  . .   D and  E. . . . 

F . . . . ,  as  executors,  for  the  costs  of  the  action,  with 

dollars  costs  of  this  motion]. 

2333.  Another  form,  in  the  alternative. 

[As  in  Form  2326  to  the  *,  continuing]: 

ORDERED,   that  the  said   C...    D ,  executor  as 

aforesaid,  revive  and  continue  said  action,  by  filing  and  serv- 
ng  a  supplemental  complaint  therein,  within  twenty  days 
after  service  of  a  copy  of  this  order;  or  that,  in  default  there- 
of, the  complaint  in  said  action  be  dismissed,  and  the  de- 
fendant have  leave  to  enter  judgment  against  the  said  C 

D . . . . ,  executor,  as  aforesaid  for  the  costs  of  such  action. 


Chapter  CXXVL]  1605  [Forms  2334-2336. 

2334.  Notice  of  motion  to  declare  action  dismissed,  un- 

less the  proper  parties  revive  it  (Wis.  Stats. 
1913  sec.  2811). 
[Title.] 

TAKE  NOTICE,  that  on  the  affidavit  of  which  a  copy  is 
herewith  served,  the  undersigned  will  move  the  court  at  a 

special  term  to  be  held  at on  the  ....  day  of , 

19, .,  at  ....  o'clock  in  the  ....  noon,  or  as  soon  thereafter 
as  counsel  can  be  heard,*  to  require  this  action  to  be  re- 
vived and  continued  by  the  executor  of  the  above  named 
A. . . .  B . . . .,  deceased,  as  plaintiff  herein,  within  a  time  to  be 
fixed  by  the  court,  or  that,  in  default  thereof,  the  action 
shall  stand  dismissed;  or  for  such  other  relief  as  may  be  just. 

[Date.]  [Signature.] 

[Address.] 

2335.  Affidavit. 

[Title.] 
[Venue.] 
Y Z. . . .,  being  duly  sworn,  says: 

I.  That  he  is  the  defendant  in  the  above  entitled  action. 

II.  That  this  action  is  brought  to  recover  [state  nature  and 
object  of  action  briefly,  and  the  condition  of  the  cause]. 

III.  That,  as  deponent  is  informed  and  believes  [after 
issue  was  joined],  in  this  action,  to-wit,  on  the  ....  day  of 

,  19. .,  the  above  named  plaintiff  died,  having  first 

made  and  published  his  last  will  and  testament,  by  which  he 
appointed  C . . . .  D . . . . ,  of ,  his  sole  executor. 

IV.  That  letters  testamentary  have  been  duly  made  and 

issued  by  the   court  of   to  the  said  C . . . . 

D....,  who  has  accepted  the  same,  and  entered  upon  the 
duties  of  his  office,  and  that  no  application  to  revive  or  con- 
tinue this  action  has  been  made  by  said  C . . . .  D . . . . 

[Signature.] 
[Jurat.] 

2336.  Order  thereon. 

[As  in  Form  2328  to  the  *,  continuing]: 

ORDERED,  that  C. .  . .  D. . . .,  executor  of  the  above 
named  A. . . .  B . . . .,  deceased,  be  at  liberty  to  continue  this 
action  as  plaintiff  therein  in  place  of  the  said  A . . . .  B , 


r  orms  2337,  2338.]  1606  [Chapter  CXXVI. 

and  that  in  the  event  of  his  failure  to  appear  and  proceed 

therein  as  such,  within months  after  service  of  a  copy 

of  this  order  upon this  action  be  dismissed. 

2337.  Notice  of  filing  supplemental  complaint  and  re- 

vival of  action  by  plaintiff  p  gainst  personal  rep- 
resentatives of  deceased  defendant  (Wis.  Stats. 
1913  sec.  2810). 

[Title.] 

To    [name   personal   representatives    of  deceased   defendant]. 

TAKE  NOTICE  that  a  supplemental  complaint  in  the 
above  entitled  action  of  which  a  copy  is  herewith  served  upon 

you  was  filed  in  the  office  of  the  clerk  of  the court  of 

on  the day  of ,  19 . . ,  and  that  unless 

you  show  cause  if  any  you  have,  by  answer  or  affidavit  with- 
in twenty  days  after  service  of  this  notice  upon  you  exclusive 
of  the  day  of  such  service  why  the  above  entitled  action 
should  not  be  revived  or  continued  the  same  will  stand  re- 
vived or  continued  according  to  the  said  supplemental  com- 
plaint. 

Dated ,  19.. 

L....  M.... 
Plaintiff's    Attorney. 

2338.  Affidavit  of  attachment  issued,  and  death  of  de- 

fendant before  publication  of  summons  com- 
pleted. 

[Commencement  as  in  other  cases,  and  stating  the  nature  of 
the  cause  of  action.] 

1.     That  on  the  ....  day  of ,  19. .,  he  commenced 

proceedings  for  the  purpose  of  bringing  thereon  an  action 
against  the  defendant  Y .  .  . .  Z . . .  .  by  publication  of  the 
summons  against  him,  pursuant  to  the  provisions  of  the 
statute,  the  said  defendant  being  a  non-resident  of  the  state 
of and  residing  in  the  town  of in  the  state  of 


II.  That  during  the  time  of  such  pubhcation,  the  de- 
ponent procured  an  attachment  to  be  issued  in  his  favor,  in 
said  action,  against  the  said  Y . . . .  Z . . . . ;  upon  which,  dur- 
ing the  lifetime  of  the  said  Y Z the  sheriff  of  the 

county  of seized  a  large  quantity  of  goods,  the  prop- 


Chapter  CXXVI.]  1607  [Forms  2339-2341. 

erty  of  the  said  Y . . . .  Z . . . . ,  of  the  value  of dol- 
lars; and  thereafter  the  said  goods  were  so  seized  by  the  said 
sheriff,  and  before  the  said  publication  was  completed,  the 

said  Y . . . .  Z . . . .  died,  on  or  about  the  ....  day  of , 

19.. 

[Allege  appointment  of  executors,  as  in  Form  2325,  and  con- 
clude as  in  other  cases.] 

2339.  Order  thereon. 

[Commencement  as  in  Form  2343.] 

ORDERED,  that  plaintiff  have  leave  to  proceed  against 

C . . . .  D the  executor  of  said  Y . . , .  Z . . . . ,  deceased, 

by  the  service  of  summons  and  complaint  upon  him  as  the 
defendant  herein;  and  that  the  proceedings  by  attachment 
stand  revived  and  continued  in  the  name  of  said  executor  as 
defendant. 

[In  Nebraska  the  order  should  be  conditional.  See  Form 
2326.] 

2340.  Stipulation  in  notion  against  corporation,  on  the 

expiration  of  its  charter,  to  continue  in  the 
name  of  new  corporation. 

[Title.] 

The  act  of  incorporation  by  which  the  defendants,  the 
president,  directors,  and  company  of  the  Bank  of  A...., 
were  incorporated,  having  expired  by  its  own  limitation  since 
this  action  was  commenced,  and  the  Bank  of  A.  .  . .  having 
succeeded  to  the  rights  and  liabilities  of  the  defendants 
touching  the  subject-matter  of  this  action: 

It  is  therefore  stipulated  that  the  action  be  continued 
against  the  Bank  of  A. . . .,  without  prejudice  to  the  rights 
of  either  party  on  the  merits,  and  that  an  order  of  the  court 
may  at  any  time  be  entered  by  either  party  to  this  effect. 

[Date.]  [Signatures.] 

:ii341.    Notice  of  motion  to  substitute  officer's  succtssor. 

[Title.] 

Please  take  notice  that  on  the  affidavit  of  A ... .  B . . . . ,  of 
which  a  copy  is  herewith  served,  the  undersigned  will  move 
the  court,  at  a  special  term  thereof  to  be  held  at ,  on 


Forms  2342,  2343.]  1608  [Chapter  CXXVI. 

the  ....  day  of ,  19. .,  at  ....  o'clock  in  the  fore- 
noon, or  as  soon  thereafter  as  counsel  can  be  heard,  to  sub- 
stitute W. . . .  X. . . .,  supervisor  of  the  town  of [or 

other  official  designation]  in  the  place  of  Y . . . .  Z . . . . ,  as 
plaintiff  [or,  defendant]  in  this  action;  or  for  such  other  re- 
lief as  may  be  just. 

[Date.]  [Signatures.] 

[Address.] 

2342.  Affidavit  therefor. 

[Title.] 
[Venue.] 

M N. . . .,  being  duly  sworn,  says  that  he  is  the  at- 
torney of  the  plaintiff  [or  defendant]  in  this  action;  that  on 

the day  of last,  W X ,  of ,  was 

duly  elected  [or  appointed]  to  the  office  of   of  the 

[town  of in  the]  county  of ,  in  place  of  the  [de- 
fendant Y Z. . . .];  and  that  on  the  ....  day  of 

last,  the  said  W . . . .  X . . . .  entered  upon  the  duties  of  said 
office,  and  still  holds  the  same. 

[Signature.] 
[Jurat.] 

2343.  Order  thereon. 

[Title.]  [At  a  special  term,  etc.] 

On  reading  and  fiUng  the  affidavit  of  M . . . .  N . .  . .  [and 

proof  of  due  service  of  notice]  and  on  motion  of  IM .... 

N....,  after  hearing  0....   P....   [or,  no  one  appearing] 

in  opposition: 

ORDERED,  that  W X ,  of [designating 

official  character],  be  substituted  as  the  [defendant]  herein,  in 

place  of  Y.  .  . .  Z. . .  .  [and  he  is  hereby  required  to  appear  and 

answer  within  ....  days  after  service  of  a  copy  of  this  order]. 


CHAPTER  CXXVn. 

ADDITIONAL  PARTIES,  INTERVENTION  AND 

INTERPLEADER  UNDER  STATUTORY 

PROVISIONS. 


2344.  Order  by  court,  of  its  own 

motion,    bringing   in   nec- 
essary parties. 

2345.  Petition  by  landlord  to  inter- 

vene in  ejectment  against 
tenant. 

2346.  Petition  by  owner  of  chattels 

to  intervene  in  replevin. 

2347.  Petition  by  judgment-credi- 

tor to  be  made  co-plaintiff 
in  creditor's  action. 

2348.  Notice  of  motion  for  inter- 

vention. 

2349.  Order  to  show  cause  why  pe- 

tition   for    intervention 
should  not  be  granted. 

2350.  Order   granting   motion   for 

intervention. 


2351.  Petition  for  intervention  in 

replevin.     (Iowa.) 

2352.  Notice  of  motion  for  inter- 

pleader. 

2353.  Affidavit  by   defendant,   for 

interpleader  of  third  per- 
son in  action  on  contract. 

2354.  The   same,  in  action  of  re- 

plevin. 

2355.  The  same,  where  the  third 

party  claims  a  part  only  of 
the  property. 

2356.  Order  of  interpleader. 

2357.  Another    form,    delivery,  of 

specific  property,  and  ap- 
pointing a  receiver  there- 
for. 

2358.  Commencement  of  complaint 

by  intervener. 


Ample  provisions  are  generally  made  in  the  codes  of  the 
various  states  for  bringing  in  new  parties  in  actions  already 
pending.  When  it  is  necessary  for  a  complete  determination 
of  a  controversy  that  other  parties  be  brought  in,  they  may 
be  brought  in  by  the  court  of  its  own  motion,  or  upon  motion 
of  any  of  the  parties  to  the  action. 

In  ejectment  and  replevin  any  person  having  an  interest  in 
the  subject  matter  may  himself  petition  to  be  made  a  party 
on  a  showing  by  affidavit  or  petition,  and  will  be  let  in  as  a 
party  if  his  showing  be  sufTicient.  The  same  relief  may  be 
had  in  any  action  by  a  third  party  who  shows  that  he  has 
such  interest  in  the  subject  matter  as  to  require  that  he  be 
made  a  party  for  his  own  protection,  or  that  a  complete  deter- 
mination of  the  controversy  cannot  be  had  without  his  pres- 
ence.   This  proceeding  is  properly  called  intervention. 


Form  2344.]  1610  [Chapter  CXXVII. 

In  actions  on  contract,  or  to  recover  specific  real  or  personal 
property  or  its  value,  when  a  third  person  makes  demand  for 
the  same  debt  or  property  the  defendant  may,  on  a  show- 
ing of  the  facts,  have  such  third  party  brought  in  to  contest 
the  plaintiff's  claim.  By  some  statutes  a  garnishee  may  in- 
voke this  relief.  This  proceeding  is  a  statutory  interpleader, 
and  performs  the  function  of  the  equity  bill  of  interpleader, 
and  ordinarily  takes  its  place.  McDonald  v.  Allen,  37  Wis. 
108. 

In  a  foreclosure  action,  after  judgment  and  before  sale,  the 
plaintiff  may  bring  in  a  necessary  or  proper  party  for  the  pur- 
pose of  barring  his  rights  by  the  judgment.  Wis.  Stats. 
1913  sec.  3161. 

Generally  on  the  subjects  referred  to  above  see  the  stat- 
utes cited  in  note.^ 

2344.    Order  by  court,  of  its  own  motion,  bringing  in 
necessary  parties. 

fTz7/e.]  [Caption.] 

This  action  having  come  on  for  trial  at  said  term  on  the 
....  day  of ,  19 . . ,  before  the  court,  E . . . .  F . . . .  ap- 
pearing for  the  plaintiff,  and  G ....  H ....  for  the  defendant, 
and  it  appearing  to  the  court  that  L. . . .  M . . . .  and  N . . . , 
0 . . . .  are  necessary  parties  defendant  in  this  action,  with- 
out whose  presence  therein  a  complete  determination  of  the 
controversy  can  not  be  had;  and  that  they  have  such  an  in- 
terest in  the  subject-matter  of  the  controversy  that  the 
court  should  require  them  to  be  made  parties  for  their  due 
protection : 

iWis.  Stats.  1913  sees.  2610,  2611  7766;  Mo.  R.  S.   1909  sees.   1849, 

2767;  Ariz.  R.  S.   1913  sees.  409,  2345,  2421,  2835;  Neb.  R.  S.  1913 

410,  486,  1603,  3660;  Ark.  Dig.  of  sees.    7604-7606,    7608,    7609;    N. 

Stats.   1904  sees.  6011,  6013,  391,  Dak.  Rev.  Codes  1905  sees.  6824, 

4055;  Cal.  G.  C.  P.  1906  sees.  386,  6826,  6816;  S.  Dak.  C.  C.  P.  1903 

387,  389;  Colo.  Code  Ann.  1911  sees.  sees.  95-98;  Okla.  Comp.  Laws  1909 

16-18;  Idaho  Rev.  Codes  1908  sees.  sees.  5573,  5574,  5578;  Oregon  Laws 

4109-4111;   Iowa  Ann.   Code  1897  1910  sees.  40,  41;  Tex.  Civ.  Stats, 

sees.  3476,  3487,  3594;  Kans.  Gen.  Ann.  1913  arts.  1848,   1820;  Utah 

Stats.  1909  sees.  3382,  4391,  5633,  Comp.  Laws  1907  sees.  2924-2926; 

5634,  5638,  5834;  Mont.  Rev.  Codes  Wash.  Rem.    and  Bal.  Code  1910 

1907  sees.  6495,  6496,  6498;  Minn.  sees.   196,   198,  202;  Wyo.   Comp. 

Gen.  Stats.  1913  sees.  7690,  7764-  Stats.  1910  sees.  4332,  4334,  4324. 


Chapter  CXXVIL]  1611  [Form  2345. 

ORDERED,  That  said  L....  M. . . .  and  N. . . .  0. . . . 
be  made  parties  defendant  to  this  action,  and  that  the  sum- 
mons and  complaint  be  amended  by  the  addition  of  said 
L M and  N 0 . . . .  as  defendants,  and  other- 
wise as  the  plaintiff  may  be  advised.  That  within  twenty 
days  from  the  date  hereof,  the  plaintiff  cause  said  amended 
summons  and  complaint  to  be  served  on  said  defendants 
hereby  brought  in,  and  that  they  and  each  of  them  have 
twenty  days,  after  such  service,  in  which  to  answer  said 
amended  complaint.  That  the  trial  herein  be  postponed  until 
the  action  is  ready  for  trial  against  said  defendants  hereby 
brought  in. 

By  the  Court: 

J... .  K ,  Judge. 

2345.    Petition  by  landlord  to  intervene  in  ejectment 
against  tenant. 

[Title.] 

To  the  Circuit  Court  for County. 

THE  PETITION  of  L....   M of   in  said 

county,  respectfully  represents: 

I.  That  the  action  above  entitled  is  now  pending  in  this 
court,  for  the  recovery  by  said  plaintiff  from  the  defendant 
of  the  following  described  real  estate  and  premises,  situate  in 
said  county,  to-wit  [describe  same]  which  action  has  not  pro- 
ceeded to  judgment  [but  is  at  issue],  [or,  and  the  time  for  an- 
swering the  complaint  therein  has  not  yet  expired]. 

II.  That  said  defendant  C . . . .  D . . . .  occupies  said  prem- 
ises as  tenant  of  your  petitioner,  and  not  otherwise. 

III.  That  your  petitioner  is  the  owner  in  fee-simple  of 
said  premises,  and  the  whole  thereof,  having  acquired  title 
thereto  by  [here  indicate  the  source  of  title],  and  that  the  plaint- 
iff in  said  action  has  no  interest,  right  of  possession  or  title 
in  the  said  premises. 

WHEREFORE  your  petitioner  prays  that  he  be  allowed 
to  come  in  as  a  party  defendnat  to  defend  this  action;  and 
that  all  proceedings  be  stayed  in  said  action  [on  the  part  of 
either  party]  until  a  hearing  can  be  had  upon  this  petition. 

L....  IVl...., 
[Verification  as  in  Form  2324.]  Petitioner. 


Forms  2346,  2347.]  1612  [Chapter  CXXVII. 

2346.  Petition  by  owner  of  chattels  to  intervene  in  re- 

plevin. 

[Title.] 

To  the court  of county. 

THE  PETITION  of  L M respectfully  repre- 
sents: 

I.  That  the  above  entitled  action  is  now  pending  in  this 
court  for  the  recovery  of  the  possession  of  certain  personal 
property,  to-wit  [description  of  property];  which  action  has 
not,  as  deponent  is  informed  and  believes,  proceeded  to 
judgment. 

II.  That  the  defendant  received  the  said  [property] 
from  this  deponent  for  storage,  and  this  deponent  is  the  sole 
owner  thereof. 

III.  That  the  claim  of  the  plaintiff  in  this  action  is  made 
adversely  to  deponent's  title,  and  deponent  desires  to  litigate 
the  question  directly  with  him. 

WHEREFORE,  etc.  [as  in  last  preceding  form.] 

L....  M...., 
[Verification  as  in  Form  2324.]  Petitioner. 

2347.  Petition  by  judgment-creditor  to  be  made  co- 

plaintiff  in  creditor's  action. 

[Title.] 

To  the court  for county. 

THE  PETITION  of  L....   M....,  of   in  said 

state,  respectfully  represents: 

I.  That  this  action  was  brought  by  'the  above  named 
plaintiff  as  a  judgment  creditor  of  the  above  named  de- 
fendant C. . . .  D. , . .,  to  reach  the  property  of  said  C. . .  . 
D. . . .,  alleged  to  have  been  fraudulently  conveyed  to  the 
said  defendants,  G . . . .  H . . . .  and  E . . . .  F . . . . ,  and  to  set 
aside  the  conveyances  and  transfer  as  fraudulent  and  void  as 
against  creditors  of  the  said  C . . . .  D . . . . 

II.  That  your  petitioner  is  a  judgment  creditor  of  said 
defendant  C. . . .  D . . . ,,  having  duly  recovered  a  judgment 

against  him  in  the court  for county,  on  the 

day  of ,  19 . .,  for  the  sum  of dollars 

damages,  and  dollars  costs,  in  all  dol- 
lars, which  judgment  remains  in  full  force  and  unappealed 
from,  and  that  there  is  now  due  and  unpaid  thereon  the  sum 


Chapter  CXXVIL]  1613  [Forms  2348,  2349. 

of dollars  with  interest  from  said  day  of  rendition. 

III.  That  on  the  ....  day  of ,  19 . .,  execution  was 

duly  issued  on  the  said  judgment,  to  the  sheriff  of 

county,  commanding  him  to  satisfy  said  judgment  out  of  the 
personal  property  of  the  said  defendant  C. . . .  D. . . .,  and 
if  sufficient  personal  property  could  not  be  found,  then  out  of 
the  real  property  belonging  to  the  said  defendant,  on  the  day 
when  said  judgment  was  docketed,  in  said  county,  to-wit, 

the day  of ,  19 . . ,  or  at  any  time  thereafter,  which 

said  execution  was  afterwards,  on  the  ....  day  of , 

19. .,  returned  by  said  sheriff  wholly  unsatisfied. 

IV.  That  your  petitioner  is  ready  and  willing  to  con- 
tribute to  the  expense  of  the  action  on  being  let  in  as  a  party 
co-plaintiff,  and  that  [here  state  any  special  circumstances 
that  render  it  necessary  or  desirable  that  the  petitioner  be  let 
in,  if  any  exist.] 

YOUR  PETITIONER  therefore  prays  that  he  be  allowed 
to  come  in  as  a  party  plaintiff  in  this  action  [and  to  prosecute 
the  same];  and  for  such  further  relief  as  may  be  just. 

L....  M...., 
[Verification  as  in  Form  2324.]  Petitioner. 

2348.  Notice  of  motion  for  intervention. 

[Title.] 

TAKE  NOTICE,  that  on  the  annexed  petition  and  on  the 
pleadings  in  this   action,   the   undersigned  will   move  the 

court,  at  a  special  term  to  be  held  at on  the  ....  day 

of ,  19. .,  at  ....  o'clock  in  the  ....  noon  or  as  soon 

thereafter  as  counsel  can  be  heard,  for  an  order  directing 
L . . . .  M . . . .  the  petitioner  above  named,  to  be  made  a  party 
defendant  in  the  action  now  pending  in  this  court  between 

A. . .  .   B  . . . .,  plaintiff,  and  Y. . . .  Z defendant,  and 

for  such  other  relief  as  may  be  just. 

[Date.]  E....  F...., 

[Address.]  Attorney  for  Petitioner. 

2349.  Order  to  show  cause  why  petition  for  intervention 

should  not  be  granted. 

[Title.]  [Caption.] 

On  reading  and  fihng  the  petition  of  L....   M....   of 


Form  2350.]  1614  [Chapter  CXXYIL 

praying  to  be  let  in  as  a  party  defendant  in  this  ac- 
tion. 

IT  IS  ORDERED  that  the  plaintiff  [and  defendant]  here- 
in show  cause,  on  the  ....  day  of ,  19 .  .,  at  the  open- 
ing of  court  on  that  day,  or  as  soon  thereafter  as  counsel  can 
be  heard,  why  the  prayer  of  said  petitioner  should  not  be 
granted. 

Further  ordered  that  until  the  determination  of  this 
motion  all  proceedings  herein  on  the  part  of  the  plaintiff 
[and  defendant]  be  stayed. 

And  let  copies  of  this  order  and  said  petition  be  served  on 
the  attorneys  of  the  plaintiff  and  defendant  respectively,  at 
least  ....  days  before  the  hearing  of  such  motion. 

By  the  Court: 

J .  . . .  K . . . . ,  Circuit  Judge. 

2350.    Order  granting  motion  for  intervention. 

[Title.]  [At  a  special  term,  etc.] 

On  reading  and  filing  the  petition  of  L .  .  .  .  M ....  dated 

the  ....  day  of ,  19.  .   [and  proof  of  due  service  of 

notice  of  this  motion],  and  on  motion  of  0 ...  .  P .  .  . .  for 
said  C . . . .  D . . .  . ,  and  after  hearing  Q . . . .  R . . . .  [or  no 
one  appearing]  in  opposition: 

ORDERED  that  L M be  made  a  party  defend- 
ant herein,  and  that  the  summons  and  complaint  be  amended 
accordingly  [and  that  plaintiff  have  leave  to  amend  them  in 
other  respects  as  he  may  be  advised];  and  that  within  .... 
days  after  service  of  a  copy  of  this  order  on  the  plaintiff's 
attorney,  the  plaintiff  cause  said  amended  summons  and 
complaint  to  be  served  on  said  L . .  .  .  M ....  and  that  said 
L . . .  .  M . . . .  have  twenty  days  after  such  service  in  which 
to  answer  said  complaint,  and  that  this  cause  thereupon  pro- 
ceed as  if  said  L. . . .  M . .  .  .  had  been  originally  made  a  de- 
fendant therein.  Let  all  proceedings  on  the  part  of  the 
plaintiff  be  stayed  until  said  answer  be  served  or  the  time 
herein  fixed  for  the  service  thereof  shall  have  expired. 

By  the  Court: 

J. . . .  K. . . .,  Judge. 


Chapter  CXXVIL]  1615  [Forms  2351,  2352. 

2351.    Petition  for  intervention  in  replevin  (Iowa). 

[Title.] 

To  the court  of  the  county  of 

THE  PETITION  of  L M respectfully  shows  to 

the  court: 

[  Here  state  facts  showing  nature  of  the  action,  and  its  present 
condition,  as  well  as  the  facts  showing  the  interest  or  owner- 
ship of  the  petitioner,  as  would  be  done  in  a  complaint.] 

WHEREFORE  your  petitioner  asks  leave  to  intervene  in 
this  action  as  against  both  plaintiff  and  defendant  therein 
[or  as  the  case  may  be],  and  he  demands  judgment  against 
both  plaintiff  and  defendant  [or  as  the  case  may  be],  for  the 
property  described  in  this  petition  of  intervention  and  in 
the  petition  of  the  plaintiff  in  said  action  [or  for  the  possession 
of  the  same,  as  the  case  may  be]  or  for  the  value  thereof  if  the 
same  can  not  be  found,  and  for  his  damages  and  costs. 

0....  P...., 
Attorney  for  Intervener. 
[Verification.] 

[In  Iowa  this  petition  becomes  the  pleading  of  the  intervener 
and  is  to  be  answered  as  other  pleadings.] 

2552.    Notice  of  motion  for  interpleader. 

[Title.] 

Take  notice,  that  on  the  petition  of  C . . . .  D . . . .  here- 
with served,  and  on  the  complaint  herein,  the  defendant  will 

move  the  court,  at  a  special  term  to  be  held  at on 

the  ....  day  of ,  19. .,  at  ....  o'clock  in  the  .... 

noon,  or  as  soon  thereafter  as  counsel  can  be  heard,  to  sub- 
stitute 0....   P....   of   in  his  place,  as  defendant 

herein,  and  to  discharge  this  defendant  from  liabihty  to 
either  the  plaintiff  or  to  the  said  0 . . . .  P . . . .  concerning 
the  agreement  [or  otherwise  designate  the  contract]  mentioned 
in  the  complaint,  upon  this  defendant's  paying  into  court  the 
sum  of  dollars,  the  amount  claimed  in  the  sum- 
mons herein  [or,  if  action  is  for  specific  property,  say:  con- 
cerning the  property  mentioned  in  the  complaint,  upon  said 
defendant's  transferring  the  same  to  such  person  as  the 


Forms  2353,  2354.]  1616  [Chapter  CXXVII. 

court  may  dirct];  or  for  such     other  relief  as  may  be  just 
[and  for  the  costs  of  this  motion], 

[Date.] 

N....  0...., 

[Address.]  Defendant's  Attorney. 

2353.  AflBdavit  by  defendant,  for  interpleader  of  third 

person  in  action  on  contract. 

[Title.] 
[Venue.] 

C. . . .  D. . .,  being  duly  sworn,  says: 

I.  That  he  is  the  defendant  in  the  above  entitled  action.* 

II.  That  the  same  is  brought  on  a  contract,  which  is  set 
forth  in  the  complaint,  and  that  the  time  for  answering  said 
complaint  has  not  expired,  and  the  defendant  has  not  yet 
answered  in  this  action. 

III.  That  one  [name  the  claimant],  who  is  not  a  party  to 
this  action,  makes  a  demand  against  the  defendant  for  the 
same  debt  for  which  this  action  is  brought,  which  demand  is 
made  without  any  collusion  with  the  defendant. 

IV.  That  on  the day  of ,  19. .,  said  [name 

claimant]  served  on  the  defendant  a  notice  and  demand  of 
which  a  true  copy  is  hereto  annexed. 

V.  That  the  defendant  is  unacquainted  with  the  rights 
of  the  respective  claimants,  and  does  not  know  to  whom  to 
pay  the  amount  due  upon  said  contract  set  forth  in  the  com- 
plaint. 

THE  DEFENDANT  therefore  prays  for  an  order  sub- 
stituting said  [claimant]  as  defendant  in  this  action,  and  dis- 
charging the  defendant  from  liability  to  either  party  on  his 
depositing  in  court  the  amount  of  said  debt,  which  deposit  he 
hereby  offers  to  make. 

L.4  •    •   •   •      L)  •    •   •   • 

[Jurat.] 

2354.  The  same,  in  action  of  replevin. 

[Proceed  as  in  last  preceding  form  to  the  *,  and  continue]: 
II.     That  the  same  is  brought  to  recover  from  the  de- 
fendant the  following  described  personal  property,  to-wit 
[describe  same]. 


Chapter  CXXVIL]  1617  [Form  2355. 

III.  That  the  complaint  herein  was  served  on  the  .... 

day  of ,  19 . .,  and  the  time  for  answering  has  not  yet 

expired,  and  the  defendant  has  not  yet  answered  the  same.** 

IV.  That  one  [name  claimant]  who  is  not  a  party  to  this 
action,  makes  a  demand  against  the  defendant  for  the 
whole  of  the  same  property,  the  possession  of  which  this  ac- 
tion is  brought  to  recover. 

V.  That  the  said  demand  is  made  without  collusion  with 
the  defendant  and  [here  allege  any  facts,  as  to  possession, 
showing  that  the  defendants  are  not  liable  for  any  damages  for 
detention,  or  otherwise,  according  to  facts  of  case]. 

VI.  That  the  defendant  does  not  know  the  rights  of  the 
respective  claimants,  nor  to  whom  said  property  should  be 
delivered. 

DEFENDANT  therefore  prays  the  court  to  substitute 
said  [claimant]  as  defendant  herein,  and  to  discharge  this  de- 
fendant from  all  liability  to  either  party  so  claiming,  upon  his 
delivering  the  said  property,  or  its  value,  to  such  persons  as 
the  court  may  order,  which  he  hereby  offers  to  do. 

[Jurat] 

2355.    The  same,  where  the  third  party  claims  a  part 
only  of  the  property. 

[Proceed  as  in  last  preceding  form  to  the  **,  and  continue]: 

IV.  That  a  part  of  said  property,  to-wit  [here  describe 
the  part],  is  claimed  by  one  [name  claimant]  who  has  notified 
the  defendant  that  he  owns  and  is  entitled  to  the  possession 
of  such  part,  and  demands  the  same  of  this  defendant  [as 
by  the  written  notice  and  demand  of  which  a  true  copy  is 
hereto  annexed,  will  more  fully  appear]. 

V.  That  the  defendant  is  ignorant  of  the  rights  and  merits 
of  the  respective  claims  of  said  plaintiff  and  said  [claimant] 
and  that  a  complete  determination  of  the  questions  in  con- 
troversy can  not  be  had  without  the  presence  of  said  [claim- 
ant] as  a  party  to  this  action  [and  that,  as  to  the  property  so 
claimed  by  said  claimant,  this  defendant  makes  no  claim]. 

1U2 


Forms  2356,  2357.]  1618  [Chapter  CXXVII. 

VI.  That  all  said  property  has  been  taken  from  the  pos- 
session of  this  defendant  by  the  sheriff  of   county, 

upon  the  requisition  of  the  plaintiff  in  this  action. 

WHEREFORE,  etc. 

C...  D.... 
[Jurat] 

2356.  Order  of  interpleader. 

[Commencement  and  recitals  as  in  Form  2344.] 
ORDERED  that  on  payment  by  the  defendant  to  the 
clerk  of  this  court  of  the  amount  claimed  in  the  summons 
herein,  principal  and  interest,  less  ten  dollars  costs  of  this 
motion,  within  five  days  from  the  entry  of  this  order,  0 . . . . 
P . . . .  be  substituted  as  defendant  in  this  action  in  place  of 
Y....  Z...,  the  defendant  above  named,  and  that  said 
Y . . . .  Z . . . .  thereupon  be  discharged  from  liability  to  either 
the  plaintiff  above  named  or  said  0. . . .  P. . . . 

And  further  ordered  that  the  said  0 . . . .  P . . . .  have  leave 
to  appear  and  defend  this  action  within  twenty  days  after 
service  upon  him  of  a  copy  of  this  order,  together  with  a 
copy  of  the  complaint  herein,  and  that  in  case  he  fail  so  to  do 
the  plaintiff  may  apply  to  the  court  for  judgment  as  by  de- 
fault, and  for  such  other  relief  as  he  may  be  entitled  to. 

By  the  Court: 
J K Judge. 

2357.  Another  form,  delivery  of  specific  property,  and 

appointing  receiver  therefor. 

[Commencement  and  recitals  as  in  last  preceding  form.] 
ORDERED:     1.     That  the  defendant  deliver  the  prop- 
erty mentioned  in  the  complaint  herein  to   R . .  .  .    S . .  . , 
Esq.,  of ,  who  is  hereby  appointed  receiver  thereof. 

2.  That  0 P ,  of  be  substituted  as  de- 
fendant in  this  action,  in  place  of  the  above  named  Y . . . . 

Z ,  who  shall,  upon  delivery  of  the  said  property  to  the 

said  receiver,  be  discharged  from  all  liability  therefor,  either 
to  the  plaintiff  or  to  the  said  0 . . . .  P . . . . 

3.  That  the  said  receiver  hold  the  said  property,  subject 
to  the  further  direction  of  this  court.  [If  any  special  author- 
ity is  needed,  as  for  the  collection  of  incomes,  or  the  sale  of  the 
property,  insert  it  here.] 


Chapter  GXXVIL]  1619  [Form  2358. 

4.  That  within  ....  days  after  entry  [or  notice]  of  this 
order,  the  plaintiff  serve  a  summons  and  a  copy  of  his  .  om- 
plaint,  amended  as  he  may  see  fit  [with  a  copy  of  this  order], 

upon  the  said  0 P ;  and  that  the  said  0 P . . . 

answer  such  complaint  within  ....  days  thereafter. 

5.  That  if  the  plaintiff  neglect  to  serve  his  summons  and 
complaint  and  this  order  as  herein  directed,  the  defendant 
Y . . . .  Z . . . .  may  apply  to  the  court  for  an  order  dismiss- 
ing the  action,  and  that  the  said  property  be  delivered  by  the 
receiver  to  the  said  defendant  Y . . . .  Z . . . . ;  and  if  the  said 
0 . . . .  P . . . .  neglect  to  answer  such  complaint,  if  served  as 
herein  directed,  the  plaintiff  may  apply,  on  notice,  for  an 
order  that  said  property  be  delivered  by  the  receiver  to  the 
plaintiff. 

That dollars  costs  be  allowed  to  the  said  Y . . . . 

Z. . . .,  to  be  deducted  by  him  out  of  the  fund  [or,  to  be  paid 
by  the  plaintiff,  and  allowed  to  him  in  case  of  his  final  re- 
covery of  judgment]. 

By  the  Court: 

J K ,  Judge. 

2358.    Commencement  of  complaint  by  intervener. 
[Title.] 

Now  comes  E F and  by  leave  of  the  court  first 

had  and  obtained  serves  and  files  this  his  complaint  in  in- 
tervention in  the  above  entitled  action  and  as  grounds  of  his 
intervention  alleges  [state  the  facts  on  which  intervener's 
rights  are  based  as  in  a  complaint  or  answer]. 


CHAPTER  OXXVIII. 


CHANGE  OF  VENUE. 


2359.  Demand  for  change  by  party 

because  action  is  not 
brought  in  the  county  in 
which  defendant  resides. 

2360.  The    same,    by    defendant's 

attorney,  combined  with 
notice  of  retainer. 

2361.  The   same   specifying   other 

reasons  than  residence. 

2362.  Consent  to  change. 

2363.  Affidavit  for  change  on  fail- 

ure to  consent. 

2364.  Notice  of  motion  for  change. 

2365.  Order  to   show   cause  with 

stay  of  proceedings. 

2366.  Affidavit  for  change  because 

impartial  trial  cannot  be 
had. 

2367.  Affidavit  for  change  for  con- 

venience of  witnesses. 
*368.  Affidavit  for  change  in  case 


appealed  from  justice  court 
(Wisconsin.) 

2369.  Affidavit  for  change  of  venue 

on  ground  of  prejudice  of 
judge.     (Wisconsin.) 

2370.  The  same,  on  account  of  dis- 

qualification of  judge. 

2371.  Order  changing  venue. 

2372.  Stipulation  to  change  place  of 

trial.     (Wisconsin.) 

2373.  Order    changing    venue    on 

stipulation. 

2374.  Order    changing    venue    for 

alleged  prejudice  of  judge. 
(Wisconsin.) 

2375.  Order    changing   venue,    on 

judge's  own  motion. 

2376.  Affidavit  by  plaintiff  to  op- 

pose change  asked  for  on 
ground  of  convenience  of 
witnesses. 


Proceedings  to  change  the  place  of  trial  of  pending  actions 
are  purely  statutory,  and  the  statutes  of  the  various  states 
vary  considerably  as  to.  the  grounds  upon  which  an  apphca- 
tion  for  such  change  may  be  made.  Most  of  the  statutes 
agree  substantially  in  providing  that  such  change  may  be 
had  when  it  appears  either  (1)  that  the  county  in  which  the 
action  is  brought  is  not  the  county  fixed  by  statute  for  the 
trial  of  such  an  action;  (2)  where  it  appears  that  an  impartial 
trial  cannot  be  had  therein,  either  by  reason  of  prejudice 
of  the  people  or  disqualification  or  prejudice  of  the  judge; 
(3)  when  the  convenience  of  witnesses  and  the  ends  of  justice 
would  be  promoted  by  a  change.^ 


iWis.  Stats.  1913  sees.  2622- 
2624;  Ariz.  R.  S.  1901  sees.  494-503; 
Ark.  Dig.  of  Stats.  1904  sec.  7996 
et  seq.;  Cal.  C.  C.  P.  1906  sec.  397 


et  seq.;  Colo.  Code  Ann.  1911,  sees. 
31-33;  Idaho  Rev.  Codes  1908  sec. 
4125  et  seq.;  Iowa  Ann.  Codes  1897 
sec.  3505  et  seq.;  Kans.  Gen.  Stats. 


Chapfer  CXXVIIL]  1621  [Forms  2359,  2360. 

The  forms  given  in  this  chapter  were  primarily  prepared 
for  use  in  Wisconsin;  they  may,  however,  be  easily  varied  to 
meet  the  requirements  of  the  statute  of  any  of  the  other  code 
states. 

2359.  Demand  for  change  by  party  because  action  is  not 

brought  in  the  county  in  which  defendant  re- 
sides. 

[Title  of  cause.] 

I  hereby  demand  that  the  trial  of  this  action  be  had  within 
the  proper  county,  viz.,  the  county  of  [designating  it]  for  the 
reason  that  at  the  time  of  the  commencement  of  this  action  I 

resided  and  still  reside  in  the  city  of in  said  county  of 

[or  otherwise  state  the  reason  according  to  the  fact  and 

the  provision  of  the  statute]. 

[Date.]  C...  D...., 

Defendant    above    named. 

[Address.] 

2360.  The  same,  by  defendant's  attorney,  combined  with 

notice  of  retainer. 

[Title.] 

Take  notice  that  the  undersigned  is  retained  by  and  here- 
by appears  for  the  defendant  in  the  above  entitled  action; 
and  that  the  defendant  demands  that  the  trial  of  this  action 
be  had  within  the  proper  county,  to-wit,  the  county  of 

for  the  reason  that  *  the  said  defendant  at  the  time  of 

the  commencement  of  this  action,  resided  and  still  resides  in 
the  city  of in  said  county  of 

[Date.]  G H 

Defendant's  Attorney. 

[Address.]  [P.  0.  address.] 


1909  sec.  5650;  Mont.  Rev.  Codes  Oregon  Laws  1910  sec.  45  et  seq.; 

1907  sec.  9219  et  seq.;  Minn.  Gen.  Tex.    Civ.    Stats.    Ann.    1913  art. 

Stats.  1913  sec.  7723  et  seq.;  Mo.  1911    et   seq.;    Utah    Comp.    Laws 

R.  S.  1909  sec.  1927  et  seq.;  Neb.  1907  sees.  2934-2937;  Wash.  Rem. 

R.  S.  1913  sec.  7621  et  seq.;  N.  Dak.  and  Bal.  Code  1910  sec.  209  et  seq.; 

Rev.  Codes  1905  sees.  6830-6831;  Wyo.  Comp.  Stats.  1910  sec.  5142 

S.  Dak.  C.  C.  P.   1908  sec.   102;  et  seq. 
Okla.  Comp.  Laws  1909  sec.  5590; 


Forms  2361-2363.]  1622  [Chapter  CXXVIII. 

2361.  The  same  specifying  other  reasons  than  residence. 

[Proceed  as  in  either  of  two  preceding  forms  to  the  *  and  con- 
tinue]: the  said  action  is  brought  for  the  recovery  of  certain 
real  property  none  of  which  is  situated  within  the  county  of 
[name  county  in  which  action  is  brought]  but  all  [or  a  part]  of 
which  is  situated  within  the  county  of  [ncune  proper  county], 

[In  case  the  reason  for  the  change  be  other  than  that  above 
named,  specify  it,  following  the  particular  statute  closely.] 

[Date.]  G....  H.... 

Defendant's    Attorney. 

[Address.]  [P.  0.  address.] 

2362.  Consent  to  change. 

[Title.] 

Take  notice  that  the  above  named  plaintiff  consents  that 
the  place  of  trial  of  this  action  be  changed  to county. 

[Date.]  E....  F...., 

Plaintiff's  Attorney. 

[Address.]  [P.  0.  address.] 

2363.  Affidavit  for  change  on  failure  to  consent. 

[Title.] 
[Venue.] 

C. . . .  D . . . ,  being  duly  sworn  on  oath,  says  that  he  is  the 
defendant  in  the  above  entitled  action. 

That  the  same  was  commenced  on  the  ....  day  of , 

19. .,  by  service  of  the  summons  and  complaint  on  said  de- 
fendant. 

That  at  the  time  of  the  commencement  of  this  action,  the 

said  defendant  resided  and  still  resides  in  the  city  of 

in  the  county  of 

That  on  the day  of 19.  .,  the  defendant's  at- 
torneys served  on  the  attorneys  for  the  plaintiff,  a  demand  in 
writing  that  the  place  of  trial  of  this  action  be  changed  to 
county,  of  which  demand  a  copy  is  hereto  annexed. 

That  no  written  consent  to  said  change  has  been  served  by 
the  plaintiff's  attorneys  on  the  defendant's  attorneys,  or  re- 
ceived by  them  in  this  action. 

[//  the  residence  of  the  defendant  be  not  the  ground,  insert 
in  the  foregoing  affidavit  instead  of  the  statement  as  to  resi- 
dence of  the  defendant,  the  true  ground  as  it  is  stated  in  the 


Chapter  CXXVIIL]  1623  [Forms  2364,  2365. 

particular  statute  e.  g.,  that  the  said  action  is  brought  for  the 
recovery  of  certain  real  property,  none  of  which  is  situated 

within  the  county  of   but  all  of  which  is  situated 

within  the  county  of ] 

[//  required  by  the  particular  statute  add  an  affidavit  of 
merits  as  in  Form  2366.] 

2364.  Notice  of  motion  for  change. 

[Title.] 

Take  notice  that  upon  the  summons  and  complaint  in  this 
action,  the  demand  for  change  of  place  of  trial  heretofore 
served  on  you,  and  the  affidavit  of  G, . . .  D. . . .,  herewith 
served  on  you,  the  undersigned  will  move  the  court  at  the 
next  regular  term  thereof  to  be  held  in  the  court  house  in  the 

city  of in  said  county,  on  the  ....  day  of , 

19. .,  at  the  opening  of  court  on  said  day  or  as  soon  there- 
after as  counsel  can  be  heard  [or  if  the  motion  be  before  the 
Judge]  will  apply  to  the  Hon.  L.  .  . .  M . . . .,  circuit  judge,  at 

his  chambers  in  the  court  house  in  the  city  of in  said 

county,  on  the   ....   day  of   ,  19.  .,  at   ....  o'clock 

A.  M.l  for  an  order  changing  the  place  of  trial  of  this  action 

to   county,  for  the  reason  that  [state  reasons  as  in 

demand  and  affidavit]. 

Dated ,19..  L M 

Defendant's  Attorney. 

2365.  Order  to  show  cause  with  stay  of  proceedings. 

[Title.] 

On  the  affidavit  of  C. . . .  D . .  . .  served  herewith,  and  the 
demand  therein  mentioned,  and  on  the  pleadings,  let  the 

plaintiff  show  cause  at  a term  to  be  held  at on 

the  ....  day  of   ,  19.  .,  at  ....  o'clock  in  the   .... 

noon,  or  as  soon  thereafter  as  counsel  can  be  heard,  why  the 
place  of  trial  of  this  action  should  not  be  changed  from  the 
county  of to  the  county  of ;  and  why  the  de- 
fendant should  not  have  the  costs  of  this  motion,  and  such 
other  relief  as  may  be  just.  And  until  the  determination  of 
this  motion,  let  all  the  proceedings  on  the  part  of  the  plain- 
LilT  be  stayed. 


Forms  2366,  2367.]  1624  [Chapter  CXXVIII. 

Let  this  order  and  said  affidavit  be  served  on  the  plaintiff's 

attorney  on  or  before  the  ....  day  of ,  19 . . 

By  the  Court: 
L . . , .  M Circuit  Judge. 

2366.  Affidavit  for  change  because  impartial  trial  can- 

not be  had. 

[Title.] 
[Venue.] 

C D . . . .,  being  first  duly  sworn,  says  that  he  is  the 

defendant  in  this  action. 

That  the  summons  and  complaint  in  this  action  were 

served  on  him  on  the  ....  day  of ,  19 .  . ;  and  that  issue 

was  joined  by  the  service  of  this  defendant's  answer  on  the 
day  of ,19.. 

That  this  affiant  has  fully  and  fairly  stated  the  case  in 
this  action  to  G. . . .  H . . . .,  Esq.,  his  counsel,  who  resides  in 
the  city  of in  said  county,  and  that  upon  such  state- 
ment thus  made  he  is  advised  by  his  said  counsel  and  verily 
believes  that  he  has  a  valid  and  substantial  defense  to  said 
action  upon  the  merits,  and  to  the  whole  thereof  [or  to  some 
part  thereof,  specifying  what  part]. 

That  an  impartial  trial  cannot  be  had  in  the  county  in 
which  this  action  is  pending,  as  this  affiant  has  reason  to  be- 
lieve and  verily  does  believe;  and  that  the  reasons  and 
grounds  of  this  belief  are  as  follows,  to-wit  [here  state  the 
reasons  why  an  impartial  trial  cannot  be  had,  with  parti- 
cularity; if  there  be  widespread  prejudice  of  the  people  not  only 
should  the  fact  be  stated  but  it  must  appear  that  the  affiant  has 
occasion  to  know  that  such  is  the  fact  by  investigation,  and  the 
affidavits  of  third  persons  who  have  mixed  with  the  people  and 
are  able  to  testify  from  personal  knowledge  should  be  added. 
The  affidavit  of  the  party  himself  will  rarely  suffice]. 

C...  D.... 
[Jurat.] 

2367.  Affidavit  for  change  for  convenience  of  witnesses. 

[Title.] 
[Venue.] 

C. . . .  D . . . .,  being  first  duly  sworn,  says  that  he  is  the 
defendant  in  this  action,  and  that  the  same  was  commenced 


Chapter  CXXVIII.]  1625  [Form  2368. 

on  the  ....  day  of ,  19. .,  by  the  service  of  the  sum- 
mons and  complaint;  and  that  issue  was  joined  therein  by 

service  of  defendant's  answer  on  the  ....  day  of , 

19.. 

That  this  affiant  has  fully  and  fairly  stated  the  case  in  this 
action  to  G....   H...,  Esq.,  his  counsel,  who  resides  at 

in  said  county;  and  that  upon  such  statement  thus 

made  he  is  advised  by  his  said  counsel  and  verily  believes 
that  he  has  a  valid  defense  to  said  action  upon  the  merits,  and 
to  the  whole  thereof  [or  to  a  part  therof,  specifying  what 
part]. 

That  the  facts  which  the  defendant  expects  to  prove  to 
establish  his  defense  are  the  following  [here  state  the  same]. 

That  this  affiant  has  fully  and  fairly  stated  to  his  said 
counsel  the  facts  which  he  expects  to  prove  by  each  and  every 
one  of  the  following  named  witnesses,  viz.  [name  proposed 
witnesses];  and  that  he  is  advised  by  said  counsel  and  verily 
believes  that  each  and  every  one  of  said  witnesses  are  ma- 
terial and  necessary  to  his  defense,  and  that  without  their 
testimony  he  can  not  safely  proceed  to  trial;  and  that  each 

and  all  of  said  witnesses  reside  in  the  county  of   , 

to-wit  [here  specify  where  each  witness  resides]. 

That  the  convenience  of  said  witnesses  requires  that  the 
place  of  trial  of  this  action  be  changed  to  said  county  of 

and  this  affiant  makes  this  affidavit  for  the  purpose 

of  moving  for  such  change. 

That  no  previous  application  for  change  of  place  of  trial 
herein  has  been  made,  and  no  change  has  heretofore  been 
made. 

C....D 

[Jurat.] 

2368.    Affidavit  for  change  in  case  appealed  from  justice 
court  (Wis.  Stats.  1913  sec.  2624). 

[Venue.] 

C . . . .  D ,  being  first  duly  sworn  says : 

That  he  is  defendant  in  the  above  entitled  action,  and  that 
the  same  is  now  pending  on  appeal  of  this  defendant  from  a 
judgment  rendered  in  said  action,  before  J....  P...., 
Esq.,  a  justice  of  the  peace  of  said  county,  on  the  ....  day 
of 19 . .,  in  favor  of  the  plaintiff  and  against  this  de- 


Forms  2369,  2370.]  1626  [Chapter  CXXVIII. 

fendant,  for  the  sum  of  dollars  and   ....  cents, 

damages,   and    dollars  and    ....   cents  costs  [or 

otherwise  describe  judgment]. 
That  this  action  was  commenced  by  process  personally 

served  on  affiant  on  the  ....  day  of ,  19.  .,  and  that 

the  affiant  was  not  then  a  resident  of  said  county,  but  then 
resided  and  ever  since  has  resided  and  now  resides  in  the 

county  of ;  and  defendant  demands  a  change  of  the 

place  of  trial  to  said  county  of ,  the  county  of  his 

residence. 

C...  D.... 
[Jurat.] 

2369.  Affidavit  for  change  of  venue  on  ground  ^f  preju- 

dice of  judge  (Wis.  Stats.  1913  sec.  2625). 

[Title.] 
[Venue.] 

C . . .  D . . . . ,  being  first  duly  sworn,  says  that  he  is  the  de- 
fendant in  this  action,  and  that  he  has  good  reason  to  be- 
lieve and  does  believe  that  he  cannot  have  a  fair  trial  in  such 
action  in  said  court  on  account  of  the  prejudice  of  the  judge 
thereof,  the  Hon.  L. . . .  M. . . . ;  and  the  defendant  makes 
this  affidavit  for  the  purpose  of  applying  for  a  change  of  the 
place  of  trial  to  some  county  where  the  cause  complained  of 
does  not  exist. 

C...  D.... 
[Jurat.] 

[This  affidavit  may  he  filed  at  any  time  before  the  trial  be- 
gins, but  notice  of  the  motion  should  be  given  if  it  is  desired  to 
avoid  payment  of  witness  fees.] 

2370.  The  same,  on  account  of  disqualification  of  judge. 

[Title.] 
[Venue.] 

C. . . .  D. . . .,  being  duly  sworn  says  that  he  is  the  de- 
fendant in  the  above  entitled,  action;  that  the  Hon.  L. . , . 
M. . . .,  judge  of  the  above  named  court,  in  which  this  ac- 
tion has  been  commenced  and  is  pending,  is  related  to  the 
plaintiff,  to-wit,  the  said  L . .  . .  M . .  .  .  is  [name  relation- 
ship showing  it  to  be  within  the  statutory  degrees  if  the  statute 


Chapter  CXXVIIL]  1627  [Forms  2371-2373. 

names  degrees]  [or  if  the  disqualification  arises  from  interest 
in  the  controversy  state  the  same.] 

Km*   t   •   t     L)  m   »   9  • 

[Jurat.] 

2371.  Order  changing  venue. 

[Title.]  [Caption.] 

On  reading  and  filing  the  affidavit  of  [here  name  all  affi- 
davits and  papers  on  which  motion  is  based],  and  on  the 
pleadings  herein,  and  after  hearing  G. . . .  H. . . .,  Esq.,  of 
counsel  for  the  defendant,  and  E. . . .  F. . .  .,  Esq.,  of  counsel 
for  the  plaintiff,  due  proof  of  service  of  notice  of  this  motion 
[or  the  order  to  show  cause  why  this  motion  should  not  be 
granted]  having  been  made  and  filed;  and  the  court  being 
advised  in  the  premises, 

ORDERED  that  the  place  of  trial  of  this  action  be  and 

hereby  is  changed  from    county  to  the  county  of 

which  is  the  proper  place  of  trial  of  the  same  [or,  on 

the  ground  that  there  is  reason  to  believe  that  an  impartial 

trial  can  not  be  had  in  said  county  of   ;  or,  for  the 

reason  that  the  convenience  of  witnesses  and  the  ends  of 
justice  will  be  promoted  by  such  change]  [and  that  the  de- 
fendant have  ten  dollars,  the  costs  of  this  motion]. 

By  the  Court: 
J....   K Circuit  Judge. 

2372.  Stipulation  to  change  place  of  trial  (Wis.  Stats. 

1913  sec.  2622). 

[Title.] 

•     It  is  hereby  stipulated  and  agreed  that  the  place  of  trial  of 
this  action  be  changed  to county  [and  that  the  plaint- 
iff advance  the  costs  of  making  such  change,  to  abide  the 
event  of  the  action]. 
[Date.] 

E F ,  Plaintiff's  Attorney. 

G H Defendant's  Attorney, 

2373.  Order  changing  venue  on  stipulation. 

[Title.]  [Caption.] 

The  parties  hereto  having  stipulated  that  the  place  of 


Forms  2374-2376.]  1628  [Chapter  CXXVIII. 

trial  of  this  action  be  changed  from county  to 

county, 

ORDERED  that  the  place  of  trial  of  this  action  be  changed 

in  accordance  with  said  stipulation,  from county  to 

county.  * 

By  the  Court: 
J. . . .  K. . . .,  Circuit  Judge. 

2374.  Order  changing  venue  for  alleged  prejudice  of 

judge  (Wis.  Stats.  1913  sec.  2625). 

[Title.]  [Caption.] 

On  the  affidavit  of  the  defendant,  C . . . .  D . . . . ,  alleging 
that  he  has  good  reason  to  believe  and  does  believe  that  he 
cannot  have  a  fair  trial  in  this  action  in  this  court,  on  ac- 
count of  the  prejudice  of  the  judge  thereof,  the  Hon.  [name 
the  judge],  and  on  motion  of  G....  H....,  Esq.,  defend- 
fendant's  attorney, 

ORDERED  that  the  place  of  trial  of  this  action  be  and 

hereby  is  changed  from county  to  the  county  of 

[Date.] 

By  the  Court: 
L. . . .  M Circuit  Judge. 

2375.  Order  changing  venue,  on  judge's  own  motion. 

[Title.]  [Caption.] 

This  cause  being  now  pending  in  this  court  at  issue,  and  it 
appearing  to  the  judge  thereof,  that  he  has  been  of  counsel  for 
one  of  the  parties  thereto  [or,  that  he  is  interested  in  the  sub- 
ject matter  thereof,  or,  that  he  is  related  to  one  of  the 
parties],  therefore, 

ORDERED  that  the  place  of  trial  of  this  action  be  changed 

from county  to county. 

[Date.] 

-  By  the  Court: 

L. . . .  M . . . .,  Circuit  Judge. 

2376.  Affidavit  by  plaintiff  to  oppose  change  asked  for 

on  ground  of  convenience  of  witnesses. 
[Title.] 
[Venue.] 
A ....  B .... ,  plaintiff  above  named,  being  duly  sworn,  says : 


Chapter  CXXVIIL]  1629  [Form  2376. 

That  he  has  fully  and  fairly  stated  to  M N . . . . ,  his 

counsel  in  this  cause,  who  resides  at ,  in  the  county 

of ,  the  facts  which  he  expects  to  prove  by  each  and 

every  one  of  the  following  witnesses,  viz.,  C. . . .  D. . . .,  of 

the  town  of [etc.,  naming  all  the  witnesses],  all  of  whom 

reside  in  said  county  of ;  and  that  they  are,  each  and 

every  one  of  them,  material  and  necessary  witnesses  for  this 
plaintiff  on  the  trial  of  this  cause,  as  he  is  advised  by  his  said 
counsel,  and  verily  believes;  and  that  without  the  testimony 
of  each  and  every  one  of  said  witnesses,  this  plaintiff  can- 
not safely  proceed  to  the  trial  of  this  cause,  as  he  is  also  ad- 
vised by  his  said  counsel,  and  verily  believes. 

That  the  facts  which  this  plaintiff  expects  to  prove  by 
said  witnesses,  are  as  follows  [state  in  detail  the  facts  and  cir- 
cumstances which  the  plaintiff  expects  to  prove  by  each  witness, 
naming  him,  and  showing  their  materiality], 

A....  B.... 
[Jurat.] 


CHAPTER  CXXIX. 
CONSOLIDATION  OF  ACTIONS. 

2377.  Affidavit  for  consolidation  of  I   2378.  Notice  of  motion  therefor, 
actions.  I  2379.  Order  consolidating  actions. 

When  two  or  more  actions  are  pending  in  the  saine  court 
which  might  have  been  joined  they  may  be  consoUdated  on 
motion,  in  the  discretion  of  the  court.^ 

In  order  to  justify  consolidation  it  must  appear  either  by 
the  pleadings  or  affidavits,  or  both,  that  the  actions  are  of 
such  nature  that  they  might  have  been  joined  under  the  pro- 
visions of  the  statute,  and  that  either  no  defense  is  intended 
or  that  substantially  the  same  defenses  and  questions  are 
involved  in  both  actions. 

2377.    Affidavit  for  consolidation  of  actions. 

[Give  titles,  separately,  of  the  various  causes.] 
[Venue.] 

C . . . .  D .  . .  . ,  being  duly  sworn,  says  that  he  is  the  de- 
fendant [or  one  of  the  defendants]  [or  if  action  be  against  a 
corporation:  president  of  the  corporation  defendant]  in  each 
and  all  of  the  above  entitled  actions,  which  are  all  pending  in 
the court  aforesaid;  that  each  of  said  actions  is  found- 
ed upon  a  promissory  note  alleged  to  have  been  made  by  de- 
fendant and  owned  by  the  plaintiff  [or  otherwise  state  the 
nature  of  the  various  actions  so  as  to  show  that  they  are  all  of  a 
class  which  the  statute  permits  to  be  Joined]. 

That  the  defendant  has  no  defense  to  said  actions  and  does 
not  intend  to  defend  the  same  [or  that  the  defenses  are  identi- 

1  Wis.  Stats.  1913  sec.  2792;  Ariz.  sec.  7767;  Mo.  R.  S.  1909  sec.  1963; 

R.  S.  1913  sec.  690,  691;  Ark.  Dig.  Neb.  R.  S.  1913  sec.  7659;  N.  Dak. 

of  Stats.  1904  sec.  6083;  Cal.  C.  C.  Rev.  Codes  1905  sec.  7345;  S.  Dak. 

P.  1906  sec.  1048;  Colo.  Code  Ann.  C.  C.  P.  1908  sec.  567;  Okla.  Comp. 

1911  sec.  20;  Idaho  Rev.  Codes  1908  Laws  1909  sec.  5685;  Oregon  Laws 

sec.   4926;   Iowa   Ann.    Code   1897  1910  sec.  526:  Tex.  Civ.  Stats.  Ann. 

sec.  3644;  Kans.  Gen.  Stats.  1909  1913  art.  2182;  Utah  Comp.  Laws 

sec.  5739;  Mont.  Rev.  Codes  1907  1907  sec.  3489;  Wyo.  Comp.  Stats, 

sec.  7187;  Minn.  Gen.  Stats.  1913  1910  sec.  4443. 


Chapter  CXXIX.]  1631  [Forms  2378,  2379. 

cal  in  all  of  said  actions,  namely:  stating  briefly  the  defenses, 
as:  that  the  said  notes  were  executed  by  defendant  to  plain- 
tiff under  duress,  as  more  fully  set  forth  in  the  answer  of  the 
defendant,  a  copy  of  which  is  hereto  attached,  and  that  the 
issues  which  will  arise  and  be  tried  are  the  same  in  all  of  said 
actions,  or  otherwise  state  the  nature  and  identity  of  the  de- 
fenses, according  to  the  fact]. 

[State  whether  causes  are  at  issue,  and  if  so  when  issue  was 
joined,  and  if  plaintiff  has  refused  to  consent  to  consolidation, 
state  the  fact], 

C...   D.... 
[Jurat.] 

2378.  Notice  of  motion  to  consolidate  actions. 

[Give  titles  of  all  the  actions  separately.] 

TAKE  NOTICE  that  upon  the  affidavit  of  C D , 

herewith  served,  and  upon  the  pleadings  heretofore  filed  and 
served  in  the  above  entitled  actions,  the  defendant  will  move 
the  court  at  a  ....  term  thereof,  to  be  held  at  the  court  house 

in  the  city  of in  said  county,  on  the day  of 

next,  at  the  opening  of  court  on  that  day,  or  as  soon  there- 
after as  counsel  can  be  heard,  for  an  order  consolidating 
the  two  above  entitled  actions  into  one,  with  costs  of  motion. 

[Date.] 

G....  H.... 

[Address.]  Defendant's  Attorney. 

2379.  Order  consolidating  actions. 

STATE  OF 

Court County. 


A....  B...., 

Plaintiff, 
vs. 
C...  D...., 
Defendant. 


Action  commended 
19.. 


Form  2379-1 


1632 


[Chapter  CXXIX. 


A....  B...., 
Plaintiff, 
vs. 
C...  D 

Defendant. 


Action  commenced 
19.. 


The  motion  of  the  defendant  for  the  consoHdation  of  the 
two  actions  above  entitled  into  one,  coming  on  to  be  heard 
at  said  term,  upon  the  affidavit  of  C. . . .  D .  .  . .,  and  the 
pleadings  in  said  actions,  and  the  court  having  heard  G. . . . 

H....,   Esq.,   attorney  for  defendant,   and  E.,..    F 

Esq.,  attorney  for  the  plaintiff,  respectively,  for  and  against 
the  motion,  and  being  advised  in  the  premises: 

IT  IS  ORDERED  that  the  said  actions  be  and  they  are 
hereby  consolidated  into  one  action,  and  that  the  several 
statements  of  the  causes  of  action  in  the  respective  complaints 
stand  as  the  complaint  in  said  consolidated  action,  and  the 
answers  already  served  stand  as  the  answer  thereto;  and 
that  the  defendant  have  and  recover  ten  dollars  costs  of 
motion. 

[Date.]  By  the  Court: 

L. ,,.  M Judge. 


CHAPTER  CXXX. 

OFFERS  OF  JUDGMENT  AND  TO  LIQUIDATE 
DAMAGES. 


2380.  OfTer  to  allow  judgment. 

2381.  Notice  of  acceptance  thereof. 

2382.  AfTidavit  to  enter  judgment 

thereon. 


2383.  Judgment  thereon. 

2384.  Offer  to  liquidate  damages 

(served  with  answer). 

2385.  Notice  of  acceptance  thereof. 


The  codes  quite  generally  provide  that  the  defendant  may 
at  any  time  before  the  trial  serve  on  the  plaintiff  an  offer  to 
permit  judgment  to  be  taken  by  the  plaintiff  for  the  sum,  or 
property,  or  to  the  effect  therein  specified,  with  costs,  and 
if  the  offer  be  not  accepted  within  a  specified  time  it  is 
deemed  withdrawn;  but  if  the  plaintiff  fail  to  recover  a  more 
favorable  judgment  he  cannot  recover  costs  from  the  time 
of  the  offer. ^ 


2380.  Offer  to  allow  judgment. 

[Title.] 

The  defendant  [naming  him,  or  them],  offers  to  allow  judg- 
ment to  be  taken  against  him  [or,  against  the  defendant  here- 
in] by  the  plaintiff,  for  [here  specify  the  sum  or  property,  or 
specific  relief  intended]  with  costs. 

[Date.] 

[Signature  of  defendant  or  his  attorney.] 

[Address  to  plaintifTs  attorney.] 

2381.  Notice  of  acceptance  thereof, 

[Title.] 
Take  notice  that  the  plaintiff  accepts  the  offer  of  the  de- 

1  Wis.  Stats.  1913  sec.  2789,  2790;  Stats.  1913  sec.  4196;  Mo.  R.  S. 
Ariz.  R.  S.  1913  sec.  637;  Ark.  Dig. 
of  Stats.  1904  sec.  6277;  Cal.  C.  C. 
P.  1906  sec.  997;  Colo.  Code  Ann. 
1911  sec.  312;  Idaho  Rev.  Codes 
1908  sec.  4870;  Iowa  Ann.  Code 
1897  sec.  3819,  3820;  Kans.  Gen. 
Stats.  1909  sec.  6142;  Mont.  Rev. 
Codes  1907  sec.  7137;  Minn.  Gen. 
103 


1909  sec.  1965;  Neb.  R.  S.  1913  sec. 
7722,  7723;  N.  Dak.  Rev.  Codes 
1905  sec.  7238,  7239;  S.  Dak.  C.  C. 
P.  1908  sec.  472-475;  Okla.  Comp. 
Laws  1909  sec.  6054;  Oregon  Laws 

1910  sec.  532;  Utah  Comp.  Laws 
1907  sec.  3217;  Wyo.  Comp.  Stats. 
1910  sec.  4472. 


Forms  2382,  2383.]  1634  [Chapter  CXXX. 

fendant  dated 19. .,  allowing  him  to  take  judgment 

in  this  action  [for dollars]  with  costs. 

[Date.] 

[Signature  of  plaintiff's  attorney.] 

[Address  to  defendant's  attorney.] 

2382.  Affidavit  to  enter  judgment  thereon. 

[Title.] 
[Venue.] 

E. . . .  F. . . .,  being  duly  sworn,  says  that  he  is  the  at- 
torney for  the  plaintiff  in  the  above  entitled  action,  and  that 
the  annexed  offer  to  allow  judgment,  made  by  the  defend- 
ant, was  served  on  him  on  the  ....  day  of last;  and 

that  within  ten  days  thereafter,  to-wit,  on  the  ....  day  of 

last,    he    served    upon    the    defendant's    attorney, 

G. . . .  H. . . .,  Esq.,  the  foregoing  notice  that  plaintiff  ac- 
cepted the  same,  by  delivering  to  and  leaving  with  said 
G. . . .  H. . . .  personally  a  true  copy  of  the  said  last  named 
notice,  at  the  ofTice  of  the  said  G . . . .  H . . . .  in  the  city  of 
....  county  of  ....  aforesaid. 

E....  F.... 
[Jurat.] 

2383.  Judgment  thereon. 

[Title.] 

This  action  having  been  commenced  by  due  personal  serv- 
ice of  summons   on  the  defendant  C. . .  .   D . . . , ,  on  the 

....   day  of   ,  19. .,  and  the  said  defendant  L. . . . 

M . . . .  having  appeared,  and  said  defendants  having  offered 
in  writing  to  allow  the  plaintiff  to  take  judgment  against 
them  for  [state  the  judgment  offered],  which  offer  the  plaintiff, 
within  ten  days  thereafter,  duly  accepted  in  writing;  now, 
on  motion  of  M. . . .  N. . .  .,  plaintiff's  counsel: 

IT  IS  ADJUDGED  that  said  plaintiff  recover  of  said  de- 
fendants       dollars  [or  other  relief,  according  to  the 

offer],  with dollars  costs  and  disbursements,  mak- 
ing together  the  sum  of dollars. 

Dated 19.. 

By  the  Court: 

N....  0....,  Clerk. 

[If  the  statute  requires  entry  of  judgment  by  the  court,  the  re- 
quirement must  be  followed.] 


Chapter  CXXX.]  1635  [Forms  2384.  2385. 

2384.  Offer  to  liquidate  damages  (served  with  answer) . 

[Title.] 

The  defendant  hereby  offers  that  if  he  fail  in  his  defense  in 
this  action  the  plaintiff's  damages  be  assessed  at  the  sum  of 

dollars. 

[Signature  of  the  defendant,  or  his  attorney.] 

[Address  to  plaintiff's  attorney.] 

2385.  Notice  of  acceptance  thereof. 

[Title  of  cause.] 

Take  notice  that  the  plaintiff  hereby  accepts  the  offer  of 
the  defendant,  that  if  he  fail  in  his  defense  in  this  action,  the 

damages  of  the  plaintiff  be  assessed  at  the  sum  of 

dollars. 

[Date.] 

[Signature  of  plaintiffs  attorney.] 

[Address  to  defendant* s  attorney.]  / 


PART  V 

FORMS  RESPECTING  TRIAL  AND 
EVIDENCE 


CHAPTER  CXXXI. 

PROCEEDINGS    TO    OBTAIN    INSPECTION    OF 

PRIVATE  WRITINGS  OR  ADMISSION 

OF  GENUINESNESS. 


2386.  Petition  for  inspection   and 

copies.     (Wisconsin). 

2387.  Order    for    inspection     and 

copies,  or  to  show  cause. 
(Wisconsin). 

2388.  Order  absolute,  for  inspection 

and  copies,  after  decision 
of  motiort  upon  order  to 
show  cause. 

2389.  Demand  for  inspection  and 

copy.     (Nebraska). 

2390.  Petition  for  production  and 

inspection.  (Iowa  and 
Nebraska). 

2391.  Rule    thereon.      (Iowa    and 

Nebraska). 

2392.  Notice  requesting  admission 


of    genuineness    of    docu- 
mentary evidence. 

2393.  Admission  thereunder. 

2394.  Stipulation   to   admit   docu- 

ments. 

2395.  Short  form;  admission  by  one 

party. 

2396.  Stipulation  to  admit  facts. 

2397.  Notice  to  produce  at  trial. 

2398.  Notice  of  motion  for  order 

for    inspection    of    docu- 
ments and  for  a  copy. 

2399.  Affidavit  on  which  foregoing 

motion  is  based. 

2400.  Demand  for  inspection  of  an 

original     instrument     set 
forth  in  complaint. 


The  statutes  giving  the  right  to  inspection  and  copies  of 
papers  or  books  in  the  possession  of  the  opposite  party  are 
quite  similar  in  the  various  states. ^  Certain  of  the  states  also 
have  provisions  requiring  an  admission  of  the  genuineness 
of  a  writing  material  to  the  action  when  exhibited  to  the  ad- 
verse party  before  the  trial,  on  pain  of  paying  the  expense  of 
proving  its  genuineness. ^ 

sec.  533;  Utah  Comp.  Laws  1907 
sec.  3474;  Wash.  Rem.  and  Bal. 
Code  1910  sec.  1262;  Wye.  Comp. 
Stats.  1910  sec.  4.587. 

2  Wis.  Stats.  1913  sec.  4184; 
Kans.  Gen.  Stats.  1909  sec.  5959; 
Mo.  R.  S.  1909  sec.  1949;  Neb.  R. 
S.  1913  sec.  7959;  N.  Dak.  Rev. 
Codes  1905  sec.  7242;  S.  Dak.  C.  C. 
P.  1908  sec.  476;  Okla.  Comp.  Laws 

1909  sec.  5887;  Utah  Comp.  Laws 
1907  sec.  3473;  Wyo.  Comp.  Stats. 

1910  sec.  4585. 


1  Wis.  Stats.  1913  sec.  4183;  Ariz. 
R.  S.  1913  sec.  1759;  OA.  C.  C.  P. 
1906  sec.  449,  1000;  Colo.  Code 
Ann.  1911  sec.  .389;  Idaho  Rev. 
Codes  1908  sec.  4875;  Iowa  Ann. 
Code  1897  sec.  4654,  4655;  Kans. 
Gen.  Stats.  1909  sec.  5960;  Mont. 
Rev.  Codes  1907  sec.  7138;  Minn. 
Gen.  Stats.  1913  sec.  8447;  Mo.  R. 
S.  1909  sec.  1948;  Neb.  R.  S.  1913 
sec.  7960,  7961;  N.  Dak.  Rev.  Codes 
1905  sec.  7243;  S.  Dak.  C.  C.  P. 

1908  sec.  477;  Okla.  Comp.  Laws 

1909  sec.  5888;  Oregon  Laws  1910 


Form  2386.]  1640  [Chapter  CXXXI. 

2386.    Petition  for  inspection  and  copies  (Wisconsin) . 

[Title.] 
To  the   court  [or,  To  the  Hon.  L M 

Judge,  etc.] 

THE  PETITION  of  C D respectfully  shows  that 

he  is  the  defendant  in  the  above  entitled  action;  that  this 

action  was  commenced  on  the  ....  day  of ,  19.  .,  by 

the  personal  service  of  the  summons  and  complaint  on  this 
defendant,  and  that  the  defendant  duly  answered  said  com- 
plaint on  the   ....   day  of   ,  19.  .   [or  otherwise  state 

condition  of  the  action  according  to  the  fact.] 

That  this  action  is  brought  by  the  plaintiff  [here  state 
briefly  the  nature  of  the  action,  e.  g.-'  for  money  alleged  to 
have  been  lent  by  said  plaintiff  to  the  said  defendant,  at  his 
request;  or,  for  money  alleged  to  have  been  paid  by  said 
plaintiff  for  the  use  of  the  said  defendant,  at  his  request; 
or,  for  money  alleged  to  have  been  received  by  the  said  de- 
fendant for  the  use  of  said  plaintiff]. 

That  petitioner  has  fully  and  fairly  stated  the  case  in  this 
action  to  G....  H....,  Esq.,  his  counsel,  who  resides  at 
,  and  is  advised  by  his  said  counsel,  upon  such  state- 
ment, and  verily  believes  that  an  inspection  and  copies  of  the 
following  books  and  papers,  and  documents,  which,  as  he  is 
informed  and  believes,  are  now  in  the  possession  of  or  under 
the  control  of  the  plaintiff,  and  not  of  the  defendant,  are 
necessary  to  enable  defendant  to  frame  his  answer  herein 
[or,  to  prepare  his  case  for  trial],  and  that  he  cannot  safely 
proceed  to  trial  without  such  inspection  and  copies*. 

That  such  inspection  and  copies  are  made  necessary  by  the 
following  facts  [here  briefly  state  facts  showing  necessity  and 
materiality  of  the  books  or  writings,  e.  g.:  That  during  the 
negotiation  for,  and  in  making  the  agreement  sued  on,  de- 
ponent wrote  to  the  plaintiff  several  letters  relating  thereto, 

bearing  date  about  the  ....  day  of ,  19 .  . ,  respectively, 

which,  or  some  of  them,  as  deponent  is  informed  and  be- 
lieves, constitute  said  agreement]. 

That  none  of  said  letters  are  in  the  possession  or  under  the 
control  of  deponent,  nor  has  he  kept  any  copies  of,  or  ex- 
tracts from  them. 

That  your  petitioner  has  apphed  to  the  said  plaintiff  for 
permission  to  inspect  and  take  a  copy  of  said  [name  the  docu- 


Chapter  CXXXL]  1641  [Form  2387. 

merits  or  the  entries  in  said  books  relating  to  said  transactions], 
which  said  permission  has  been  refused,  and  sworn  copies  of 
the  same  have  been  refused,  by  said  plaintiff  to  the  defend- 
ant. 

That  this  is  the  only  appUcation  which  has  been  made  in 
this  behalf. 

YOUR  PETITIONER  therefore  prays  that  he  be  allowed 
to  inspect  said  [specify  what]  and  to  take  a  copy  thereof;  or 
that  a  sworn  copy  [or  copies]  thereof  be  delivered  to  him,  ac- 
cording to  law  and  the  rules  and  practice  of  this  court,  in 
such  time  and  manner  and  under  such  conditions  as  may  seem 
proper;  and  for  such  other  or  further  relief  as  may  be  proper. 

C...  D.... 

[Add  verification  as  in  Form  2324.] 

2387.    Order  for  inspection  and  copies,  or  to  show  cause 
(Wisconsin). 

[Title.] 

Upon  the  petition  of  C . . . .  D . . . . ,  defendant  in  this  ac- 
tion, of  which  a  copy  is  hereto  annexed,  and  upon  the  plead- 
ings and  proceedings  in  this  action;  on  motion  of  G.... 
H Esq.,  attorney  for  the  defendant, 

ORDERED  that  the  plaintiff  be  required  to  give  to  the 
defendant  inspection  and  a  sworn  copy  of  [name  and  de- 
scribe document  or  book] ;  or  permission  to  take  such  copies  in 
the  following  mode,  namely,  that  the  plaintiff  deposit  said 
[name  document  or  book]  with  the  clerk  of  this  court  in  his 

office  in  the  court  house,  on  the  ....  day  of ,  19 . .  ,on  or 

before  ....  o'clock  noon,  such  deposit  to  continue  until  the 

....  day  of ,  19. .,  at  ....  o'clock  ....  noon,  during 

which  period  the  defendant  is  at  liberty  to  inspect  or  take 
such  copies.  [Or  the  order  may  be:  That  the  plaintiff  de- 
liver to  the  defendant  sworn  copies  of  said  books  and  papers, 

on  or  before  the  ....  day  of ,  19. .,  at  ....  o'clock 

....  noon,  on  condition,  nevertheless,  that  the  defendant 
pay  or  tender  to  the  attorney  for  the  plaintiff,  before  such 

time  of  delivery   dollars,  to  cover  the  expense  of 

making  such  copies  and  their  delivery;  or  the  condition  may 
be:    That  the  defendant  deposit  with  the  clerk  of  this  court 

the  sum  of dollars  and  notify  plaintiff's  attorney 

of  such  deposit,  out  of  which  the  clerk  shall  tax  the  reason- 


Forms  2388,  2389.]  1642  [Chapter  CXXXI. 

able  costs  and  expenses  of  making  and  delivering  such 
copies,  OT  such  other  conditions  as  the  court  or  Judge  deems 
proper.] 

Or,  that  the  said  plaintiff  show  cause  to  the  contrary, 

before  me,  at  my  chambers,  in  the  court  house  in on 

the   ....   day  of   ,  19.  .,  at   ....   o'clock  A.  M.  [or, 

before  the  court  at  a  regular  term,  on  the  ....  day  of 

19. .,  at ,  etc.] 

Let  a  copy  of  this  order  and  the  petition  on  which  it  is 

founded,  be  served  on  the  attorneys  for  said  plaintiff 

days  before  the  date  last  mentioned. 

This  order  shall  operate  as  a  stay  of  proceedings  to  this 
extent  only,  namely  [here  specify  how  far  the  proceedings  shall 
be  stayed,  if  it  is  desired  not  to  make  a  full  stay]. 

[Date.] 

[By  the  Court:] 

L....   M....,   Circuit  Judge. 

[The  foregoing  petition  and  order  are  adapted  for  use  in 
Wisconsin,  under  Rule  XVIII,  Circuit  Court  Rules.  In 
Iowa  the  petition  must  state  the  facts  expected  to  be  proved  by 
the  books  or  papers,  etc.,  how  and  wherein  they  are  material. 
In  Nebraska  there  must  first  be  a  written  demand,  which  if 
not  complied  with  may  be  followed  by  an  order:  the  making  of 
this  demand,  and  the  failure  to  comply  should  be  alleged  in 
the  petition.] 

2388.  Order  absolute,  for  inspection  and  copies,  after 

decision  of  motion  upon  order  to  show  cause. 

[This  order  may  substantially  follow  the  form  immediately 
preceding,  omitting  the  provisions  requiring  the  showing  of 
cause.    It  does  not  seem  necessary  to  repeat  the  same.] 

2389.  Demand  for  inspection  and  copy  (Nebraska). 

[Title.] 

Take  notice  that  C . . . .  D . . . .  the  defendant  above  named 
hereby  demands  of  the  plaintiff  above  named  an  inspection 
and  copy  or  permission  to  take  copy  of  that  certain  deed 
[or  other  instrument  or  book,  describing  the  same  with  such 
particularity  as  to  enable  the  other  party  to  distinguish  it], 
which  said  [name  instrument  or  book]  is  in  the  possession  and 


Chapter  CXXXL]  1643  [Forms  2390,  2391. 

under  control  of  the  plaintiff  and  contains  evidence  relating 
to  the  merits  of  the  defense  in  this  action. 

[Date.] 

C...  D.... 
To  A B ,  Esq.,  Plaintiff, 

and  E. . . .  F Esq.,  his  Attorney. 

2390.  Petition  for  production  and  inspection  (Iowa  and 

Nebraska) . 

[Follow  the  first  form  in  this  chapter  to  the  *  and  continue]: 
That  said  deed  [or  other  paper  or  book]  is  material  to  the  just 
determination  of  this  action  in  this,  that  [state  facts  showing 
its  materiality]  and  that  the  defendant  expects  to  prove  by 
said  deed  [or  other  book  or  paper]  that  [set  forth  the  facts  ex- 
pected to  be  proved]. 

YOUR  PETITIONER  therefore  prays  that  a  rule  be  is- 
sued requiring  the  plaintiff  to  produce  said  deed  [or  book]  for 
the  purpose  of  being  inspected  and  copied  by  the  defendant, 
and  of  being  used  as  evidence  in  his  behalf,  or  that  the  said 
plaintiff  show  cause  to  the  contrary. 

[Add  verification.] 

C...    D.... 

2391.  Rule  thereon  (Iowa  and  Nebraska). 

The  State  of to  the  Sheriff  of County, 

GREETING:  C.  .  . .  D. . .  .  having  filed  his  petition  in 
a  certain  action  pending  in  the  district  court  of  the  state  of 

in  and  for   county,  wherein  A .  .  .  ,   B . .  . .  is 

plaintiff  and  C . . . .  D . . . ,  is  defendant,  alleging  that  he 
believes  a  certain  deed  [or  book,  describing  same  as  in  peti- 
tion] is  now  under  the  control  of  said  plaintiff,  and  that  the 
same  is  material  to  the  just  determination  of  said  action. 

YOU  ARE  HEREBY  COMMANDED  to  make  known 
to  the  said  A . . . .  B . . . . ,  plaintiff  aforesaid,  that  he  produce 
said  book  [or  paper  or  deed]  in  said  court  on  the  ....  day  of 

,  19. .,  for  the  purpose  of  being  inspected  and  copied 

by  the  said  defendant,  or  show  cause  to  the  contrary. 

In  witness  whereof  I  have  hereunto  set  my  hand  and 

aflfixed  the  seal  of  said  court  this  ....  day  of ,  19 . . 

[SEAL.]  L....M....,  Clerk. 


Forms  2392-2394.]  1644  [Chapter  CXXXI. 

2392.  Notice  requesting  admission  of  genuineness  of 

documentary  evidence. 
[Title.] 

Take  notice  that  the  undersigned  proposes  to  adduce  in 
evidence  upon  the  trial  the  document  [or  the  several  docu- 
ments] hereto  annexed  and  exhibited  to  you,  and  that  you 
are  requested  to  give  an  admission  in  writing  of  the  genuine- 
ness of  the  same  [respectively]. 

[Date.] 

[Address.]  [Signature.] 

2393.  Admission  thereunder. 

[Title.] 

I  hereby  make  the  admission  above  requested  [and  where 
a  pari  of  several  documents  are  admitted,  add:  so  far  as  relates 
to  the  bond  annexed,  and  refuse  to  make  any  other  admis- 
sion]. 

[Date.]  [Signature.] 

2394.  Stipulation  to  admit  documents. 

[Title.] 

It  is  hereby  stipulated  and  agreed  that  the  documents  here- 
under described  [and  to  which  we  have  respectively  set  our 
names  on  the  first  and  last  pages  thereof]  shall  and  may  be 
admitted  and  read  and  used  as  evidence  at  the  trial  of  this 
cause;  and  that  such  of  the  said  documents  as  are  described 
as  copies  or  extracts  shall  be  deemed  and  taken  to  be,  and 
shall  be  used  as,  true  copies  or  extracts,  without  further 
proving  the  same;  and  that  such  copies  or  extracts  shall, 
and  may  be,  read  in  evidence  as  primary  and  the  best  evi- 
dence, and  not  as  secondary  evidence;  and  that  the  original 
documents  shall  not  be  required  to  be  produced,  or  any  evi- 
dence as  to  the  same,  or  of  the  proper  custody  thereof,  or  as 
to  the  non-production  of  the  same;  and  no  objection  shall 
be  taken  to  the  reading  as  evidence  the  documents  so  marked, 
saving  all  just  exceptions  to  the  admissibility  of  the  originals 
as  evidence. 

The  following  are  the  documents  above  referred  to  [de- 
scribing them,  and  referring  to  a  figure  or  letter  indorsed]. 

[Date.] 

[Signatures.] 


Chapter  CXXXL]  1645  [Forms  2395-2397. 

2395.  Short  form;  admission  by  one  party. 
[Tiile.] 

For  the  purposes  of  the  trial  of  this  action,  the  due  execu- 
tion by  the  above-named  defendant,  and  the  genuineness  of 
the  annexed  contract  are  hereby  admitted ;  and  the  same  may 
be  read  in  evidence  upon  the  trial  of  said  action,  without 
further  proof. 

[Date.]  [Signature.] 

Defendant's  Attorney. 

2396.  Stipulation  to  admit  facts. 
[Title.] 

It  is  hereby  stipulated  and  agreed  that  the  following  facts 
are,  and  shall  be,  admitted  by  both  parties  for  the  purpose 
of,  and  on,  the  trial  of  this  action  [here  state  the  facts]. 

[Date.] 

[Signatures.] 

2397.  Notice  to  produce  at  trial. 

[Title.] 

TAKE  NOTICE  that  you  are  hereby  required  to  produce, 
on  the  trial  of  this  cause  [a  certain,  here  describe  the  paper 
sought;  or,  if  there  are  several  say],  the  following  described 
papers: 

1.  A  deed  bearing  date  on  or  about  the day  of  .....', 

19. .,  and  executed,  or  purporting  to  be  executed,  between 
M . . .  .N . . . .  and  0 . . . .  P . . . .  and  to  convey  a  farm  in  the 
town  of 

2.  All  books  of  account  kept  by  M N in  his 

business  at ,  from  the  ....  day  of ,  19 . .,  to 

the  ....  day  of ,  19. .,  and  containing  entries  relat- 
ing to  dealings  between  M . . . .  N . . . .  and  0 . . . .  P . . . . 

Also  other  documents,  letters,  books,  papers,  and  writings 
whatsoever,  in  your  control,  containing  any  entry,  memor- 
andum, or  other  matter  in  any  wise  relating  to  the  matters 
in  question  in  this  cause. 

And  you  are  hereby  notified  that  in  case  of  your  failure  to 
produce  the  said  [describing  the  papers]  the  defendant  will 


Forms  2398,  2399.]  1646  [Chapter  CXXXI. 

introduce  secondary  evidence  of  their  contents  on  the  trial 

of  this  action. 

[Date.]  G. ...  H...., 

[Address.]  Attorney  for  Defendant. 

[The  most  accurate  description  possible  should  be  given  of 

all  documents  desired.] 

2398,  Notice  of  motion  for  order  for  inspection  of  docu- 

ments and  for  a  copy.^ 

[Title.] 

To  E , . . .  F . . . ,  Attorney  for  Plaintiff. 

TAKE  NOTICE  that  upon  the  annexed  affidavit  of  C . . . . 
D . . . .  and  upon  the  pleadings  in  this  action  heretofore  served 

and  filed,  the  undersigned  will  move  said  court,  at on 

,  19. .,  at  the  opening  of  court  on  that  day  or  as  soon 

thereafter  as  counsel  can  be  heard,  for  an  order  requiring  the 
plaintiff  to  give  the  defendant  an  inspection  of  a  paper  [or 
accounts,  or  entries]  described  as  follows  [describe  same] 
relating  to  the  transaction  set  forth  in  the  complaint  herein 
and  which  contains  evidence  relating  to  the  defendants' 
defense  in  this  action.  The  ground  upon  which  this  motion  is 
based  is  that  such  inspection  and  copy  are  necessary  for  the 
defendant  to  have  in  order  to  properly  make  his  defense 
herein. 

Dated 19,,  G H 

Defendant's  Attorney. 

2399.  Affidavit  on  which  foregoing  motion  is  based. 

[Title.] 
[Venue.] 

C . . . .  D . . . .  being  duly  sworn  says  that  he  is  the  de- 
fendant in  this  action,  that  [insert  affidavit  of  merit,  if  made 
necessary  by  statute,  as  in  Form  2366]. 

That  the  plaintiff  has  in  his  possession  and  under  his 
control  a  certain  book  [or  document]  [describing  it]  contain- 
ing entries  and  evidence  relating  to  the  transactions  set 
forth  in' the  complaint  herein  which  are  necessary  for  the 
defendant  to  inspect  in  order  to  properly  make  his  defense 

'  This  form  and  the  following  statute  or  rule,  as  to  the  manner  in 
may  be  used  in  states  where  there  which  inspection  is  to  be  obtained, 
is  no  special  provision,   either  by 


Chapter  CXXXL]  1647  [Form  2400. 

herein.  That  the  defendant  has  duly  requested  the  plaintiff 
in  writing  to  give  the  defendant  such  inspection  and  permis- 
sion to  take  a  copy  thereof  which  request  the  plaintiff 
wholly  refused. 

C...  D.... 
[Jurat.] 

[Add  affidavit  of  the  defendant's  attorney  to  the  effect  that 
inspection  of  the  book  or  document  is  necessary  in  order  that 
the  defendant  may  make  his  defense.] 

2400.    Demand  for  inspection  of  an  original  instrument 
set  forth  in  complaint. 

[Title.] 

To  E F ,  Attorney  for  Plaintiff. 

DEMAND  is  hereby  made  for  inspection  of  the  original 
[name  instrument]  a  copy  of  which  purports  to  be  attached  to 
the  complaint  herein;  such  inspection  is  desired  for  the  pur- 
pose of  controverting  the  genuineness  [or,  the  due  execution 
or  otherwise  state  the  purpose]  of  the  said  instrument. 

Dated 19.. 

G....  H...., 
Defendant's  Attorney. 


CHAPTER  CXXXII. 

PROCEEDINGS    TO    OBTAIN    EXAMINATION    OF 
ADVERSE  PARTY. 


2401.  Notice  of  examination. 

2402.  Affidavit  to  accompany  no- 

tice, when  examination  is 
required  before  issue 
joined. 


2403.  Notice  of  motion  to  further 

limit  the  examination. 

2404.  Order  Hmiting  the  subjects 

of  examination. 


The  forms  given  in  this  chapter  are  for  use  in  Wisconsin 
under  the  provisions  of  Wis.  Stats.  1913,  sec.  4096.  Pro- 
visions somewhat  similar  are  contained  in  the  codes  of  Kan- 
sas, North  Dakota  and  South  Dakota.  Kans.  Gen.  Stats. 
1909,  sec.  5933;  N.  Dak.  Rev.  Codes  1905,  sec.  72U  etseq.; 
S.  Dak.  C.  C.  P.  1908,  sees.  478-485. 


2401.    Notice  of  examination. 

[Title.] 

TAKE  NOTICE  that  the  deposition  of  A B ,  the 

above-named  defendant  [or  president,  or  other  officer,  or 
employee  of  the  defendant  corporation,  according  to  the  fact] 
will  be  examined  in  this  action,  and  his  deposition  taken  at 
the  instance  of  the  defendant,  under  the  provisions  of  Wis 

Stats.  1898  sec.  4096,  as  amended,  on  the  ....  day  of 

19. .,  at  ....  o'clock  in  the  forenoon,  before  0. . . .  P. . . . 
Esq.,  court  commissioner  [or,  Hon.  L. . . .  M....,  circuit 

judge],  at  his  office  [or  chambers],  to-wit,  No in 

street,  city  of 

[Date.]  E....  F...., 

[Address.]  Plaintiff's  Attorney. 

[The  party  whose  deposition  is  to  be  taken  must  be  subpoenaed, 
and  his  fees  paid  or  tendered,  or  he  will  not  be  obliged  to  at- 
tend.] 


Chapter  CXXXIL]  1649    .  [Forms  2402-2404. 

2402.  Affidavit  to  accompany  notice,  when  examination 

is  required  before  issue  is  joined. 

[Title.] 
[Venue.] 

A. . . .  B ,  being  first  duly  sworn,  says  that  he  is  the 

plaintiff  in  this  action;  that  the  general  nature  and  object 
of  the  action  [here  state  same] ;  that  discovery  is  necessary  and 
is  sought  by  the  examination  of  the  defendant  as  to  certain 
facts  within  the  knowledge  of  the  defendant,  and  not  within 
the  plaintiff's  knowledge,  in  order  to  enable  the  plaintiff  to 
prepare  his  complaint  herein. 

That  the  points  on  which  such  discovery  is  desired  are  as 
follows  [here  state  the  points  distinctly], 

A....  B.... 
[Jurat.] 

[This  affidavit  must  accompany  the  notice  if  the  examina- 
tion is  applied  for,  before  joining  of  issue.] 

2403.  Notice  of  motion  to  further  limit  the  examination. 

[Title.] 

SIR:  Please  take  notice  that  the  undersigned  will  move 
the  court,  at  the  court-room  [or,  the  Hon.  J....  K...., 
presiding  judge,   at  his  chambers],  in  the  court  house  in 

[state  where],  on  the  ....  day  of ,  19 . . ,  at  . . .  o'clock  in 

in  the  ....  noon,  to  limit  the  subjects  of  examination  of  said 
defendant,  under  the  notice  and  subpoena  heretofore  served 
on  him  in  this  action. 

[Date.]  G....H . 

[Address.]  Defendant's  Attorney. 

2404.  Order  limiting  the  subjects  of  examination. 

[Title.] 

The  plaintiff  having  given  notice  of  the  examination  of  the 
defendant  to  be  taken  on  the  [give  date],  and  subpoenaed 
said  defendant  to  appear  and  be  examined  at  the  instance  of 
the  plaintiff,  and,  by  his  affidavit  served  with  such  notice 
having  stated  the  points  on  which  such  discovery  is  desired, 
to  be  as  follows  [here  state  them].  And  the  defendant  having 
moved  on  due  notice  to  further  limit  the  subjects  to  which 
such  examination  shall  extend,  and  such  motion  coming  on 

1U4 


Form  2404.] 


1650 


[Chapter  CXXXII. 


to  be  heard,  and  after  hearing  L.  . . .  M ,  Esq.,  defend- 
ant's attorney  for  the  motion,  and  0 . . . .  P. . . .,  plaintiff's  at- 
torney, opposing: 

ORDERED,  that  the  subjects  of  said  examination  be 
limited  as  follows  [here  specify  the  points  as  the  Judge  directs], 

[Date.] 

L . . .  .  M  .  . . . ,  Presiding  Judge. 

[The  form  of  the  deposition  and  the  certificate  thereto  may  be 
readily  adapted  from  Forms  2408  and  2409.] 


CHAPTER  CXXXIII. 


FORMS  RELATING  TO  DEPOSITIONS. 


2405.  Notice  of  taking  deposition 

within  state.    (Wisconsin.) 

2406.  The  same,  without  the  state. 

(Wisconsin.) 

2407.  Stipulation  for  taking  depo- 

sition without  further  no- 
tice.   (Wisconsin.) 

2408.  Form    of    deposition    taken 

upon  notice.     (Wisconsin.) 

2409.  Certificate  to  be  attached  to 

foregoing,  statutory  form. 
(Wisconsin.) 

2410.  Interrogatories   for   issuance 

of  commission.  (Wiscon- 
sin.) 

2411.  Notice  of  issuing  commission 

upon  foregoing  interroga- 
tories.    (Wisconsin.) 

2412.  Cross     interrogatories    with 

proposal  of  additional  com- 
missioner.    (Wisconsin.) 

2413.  Commission  to  take  deposi- 

tion.    (Wisconsin.) 

2414.  Deposition     on     commission 

and  return  of  commis- 
sioners.    (Wisconsin.) 

2415.  Notice  of  filing  of  deposition 

taken  on  notice.  (Wis- 
consin.) 

2416.  Notice  of  return  and  filing  of 

commission.     (Wisconsin.) 

2417.  Notice  of  motion  to  suppress 

deposition.     (Wisconsin.) 

2418.  Order  suppressing  deposition. 

(Wisconsin.) 

2419.  Affidavit  on  which  to  apply 

to  a  justice  for  the  taking 
of  testimony  of  witnesses 
within  the  state.  (Min- 
nesota.) 

2420.  Order  by  justice  for  taking 

deposition  within  the  state. 
(Minnesota.) 


2421.  Noticeof  taking  of  deposition 

without  the  state.  (Min- 
nesota.) 

2422.  Notice  of  taking  deposition 

within  the  state.  (Min- 
nesota.) 

2423.  Stipulation  for  the  taking  of 

a  deposition.   (Minnesota.) 

2424.  Certificate   to   deposition 

taken  under  notice,  order 
or  commission.  (Minne- 
sota.) 

2425.  Affidavit  on  which  to  apply 

for  commission.  (Min- 
nesota.) 

2426.  Notice     of     application    for 

commission.    (Minnesota.) 

2427.  Order  for  issuance  of  com- 

mission. 

2428.  Interrogatories     and     cross- 

interrogatories  for  deposi- 
tion taken  on  commission. 
(Minnesota.) 

2429.  Notice  of  settlement  of  inter- 

rogatories.      (Minnesota.) 

2430.  Commission  to  take  deposi- 

tion.    (Minnesota.) 

2431.  Return     and     certificate    of 

commissioner  upon  taking 
deposition.      (Minnesota.) 

2432.  Notice  of  motion  to  suppress 

and  order  thereon.  (Min- 
nesota.) 

2433.  Notice  of  taking  deposition. 

(Iowa.) 

2434.  Notice  of  issuing  of  commis- 

sion.    (Iowa.) 

2435.  Interrogatories  to  accompany 

the  foregoing  notice. 
(Iowa.) 

2436.  Cross-interrogatories    to    be 

filed  by  clerk,  if  none  be 


Contents.] 


1652 


[Chapter  CXXXIII. 


filed  by  adverse  party. 
(Iowa.) 

2437.  Commission    to   take   depo- 

sition.    (Iowa.) 

2438.  Agreement   to   take   deposi- 

tion.    (Iowa.) 

2439.  Caption  for  depositions,  gen- 

eral form.    (Iowa.) 

2440.  Certificate  to  depositions. 

2441.  The  same,  by  stenographer. 

2442.  Authentication   of  official 

character,  if  taken  before 
officer  having  no  seal. 
(Iowa.) 

2443.  Notice    by    clerk    of    filing 

of  deposition.     (Iowa.) 

2444.  Notice    to    take    deposition. 

(Nebraska.) 

2445.  Commission      and      return. 

(Nebraska.) 

2446.  Caption    and    certificate    to 

depositions  taken  on  no- 
tice or  agreement. 

2447.  Depositions.    (North  Dakota 

and  South  Dakota.) 

2448.  Certificate  of  officer.    (South 

Dakota.) 


2449.  Affidavit  for  examination  of 

witness.     (California.) 

2450.  Notice  of  taking  deposition. 

(California.) 

2451.  Order    shortening    time    of 

notice. 

2452.  Affidavit     for     issuance     of 

commission  for  witness  in 
another  state.  (Califor- 
nia.) 

2453.  Notice   of  motion  for  com- 

mission.    (California.) 

2454.  Notice  of  taking  deposition 

of  resident  Matness.  (Col- 
orado.) 

2455.  Affidavit    accompanying 

above  notice. 

2456.  Notice    and    interrogatories 

for  issuance  of  commission 
for  non-resident  witness. 
(Colorado.) 

2457.  Commission    to    take    testi- 

mony upon  interrogatories 
(Colorado.) 

2458.  Notice  of  taking  of  deposi- 

tions.    (Missouri.) 

2459.  Notice  to   take  depositions. 

(Oklahoma.) 


The  codes  generally  provide  for  the  taking  of  depositions 
either  on  oral  interrogatories  after  notice  or  on  written  in- 
terrogatories under  a  commission  issued  by  the  Court. 
Inasmuch  as  blanks  are  universally  provided  for  the  various 
papers  used  it  has  not  been  deemed  necessary  to  expand  the 
Chapter  materially.  The  statutes  bearing  on  the  subject  in 
the  various  states  are  cited  in  the  note.^ 


nVis.  Stats.  1913 sec.  4086 etseq.; 
Ariz.  R.  S.  1913  sec.  1689  et  seq.; 
Ark.  Dig.  of  Stats.  1904  sec.  3156 
et  seq.;  Cal.  C.  C.  P.  1906  sec.  2019 
et  seq.;  Colo.  Code  Ann.  1911  sec. 
375  et  seq.;  Idaho  Rev.  Codes  1908 
sec.  6059  et  seq.;  Iowa  Ann.  Code 
1897  sec.  4672  et  seq.;  Kans.  Gen. 
Stats.  1909  sec.  5943  et  seq.;  Minn. 
Gen.  Stats.  1913  sec.  8381  et  seq.; 
Mo.  R.   S.   1909  sec.  6384  et  seq.; 


Neb.  R.  S.  1913  sec.  7938  e/se?.;  N. 
Dak.  Rev.  Codes  1905  sec.  7271  et 
seq.;  S.  Dak.  C.  C.  P.  1908  sec.  509 
et  seq.;  Okla.  Comp.  Laws  1909  sec. 
5866  et  seq.;  Oregon  Laws  1910  sec. 
835  et  seq.;  Tex.  Civ.  Stats.  Ann. 
1913  art.  3649  et  seq.;  Utah  Comp. 
Laws  1907  sec.  3449  et  seq.;  Wash. 
Rem.  and  Bal.  Code  1910  sec.  1231 
et  seq.;  Wyo.  Comp.  Stats.  1910  sec. 
4561  et  seq.;  . 


Chapter  CXXXIII.].  1653  [Forms  2405,  2406. 

2405.    Notice  of  taking  deposition  within  state   (Wis. 
Stats.  1913  sees.  4100  at  seq.). 

STATE  OF  WISCONSIN. 
In  ....  Court  ....  County. 


A....  B 

Plaintiff, 
vs. 
C...  D...., 

Defendant. 


Notice  of  taking 
deposition. 


SIR:  Please  take  notice  that  the  deposition  of  L.... 
M . . . .  will  be  taken  before  0 . . . .  P . .  . . ,  Esq.,  a  court  com- 
missioner [or,  notary  public,  or,  justice  of  the  peace],  in  and 

for  said  county,  at  his  office,  No street,  in  the  . 

town  [or  village,  or,  city]  of in county,  on  the 

....  day  of 19. .,  at  . . . .  o'clock  in  the  forenoon  of 

said  day,  to  be  used  upon  the  trial  of  the  above  entitled 
action  on  the  part  of  the  plaintiff  [or,  defendant]. 

The  cause  for  taking  same  is  that  the  said  L. . . .  M. . . . 

lives  at   in   county,  more  than  thirty  miles 

from  the  place  of  trial  of  said  action  [or,  beyond  the  reach  of 
the  subpoena  of  the  court],  [or,  that  said  L.  .  . .  M.  .  . .  is 
about  to  go  out  of  the  state,  not  intending  to  return  in  time 
for  the  trial  of  said  action],  [or,  that  the  said  L . . . .  M . . . .  is 
so  sick,  or  infirm,  or  aged,  as  to  make  it  probable  that  he  will 
not  be  able  to  attend  at  the  trial  of  said  action],  [or,  that  the 
said  L ....  M ....  is  a  member  of  the  legislature  of  Wiscon- 
sin, which  is  now  in  session,  and  he  has  waived  his  privilege]. 

[Date.]  G....H...., 

Attorney  for 

ToE....  F...,Esq., 
Attorney  for 

2406.    The  same,  without  the  state  (Wisconsin). 

[For  use  without  the  state  the  notice  may  follow  the  last  pre- 
ceding form  substantially,  save  that  a  number  of  the  reasons  for 
taking  a  deposition  within  the  state  are  not  applicable.] 


A.. 

..B...., 

Plaintiff, 

vs.                             V 

C. 

..D...., 

Defendant. 

Forms  2407,  2408.]  1654  [Chapter  CXXXIII. 

2407.     Stipulation  for  taking  deposition  without  further 
notice  (Wisconsin). 

STATE  OF  WISCONSIN. 
....  Court County. 


Stipulation. 


It  is  hereby  stipulated  and  agreed  that  the  deposition  of 
L....M....,a  witness  for  the  plaintiff  [or,  defendant]  in  the 
above  entitled  action  be  taken  before  0.  .  .  .  P.  .  .  .,  Esq.,  a 
[giving  official  title]  at  his  office  in  [give  location  of  office]  on 

the  ....  day  of ,  19.  .,  at  ....  o'clock  in  the  .... 

noon,  and  that  no  further  or  other  notice  of  the  taking  of 
said  deposition  need  be  given. 

[Date.] 

E F ,  Plaintiff's  Attorney. 

G. . . .  H. . . .,  Defendant's  Attorney. 

2408.    Form  of  deposition  taken  upon  notice  (Wiscon- 
sin). 

[Venue.] 

DEPOSITION  of  L M ,  a  witness  taken  before 

me  at  my  office  in  the  city  of in  said  county,  on  the 

....  day  of ,  19.  .,  pursuant  to  the  annexed  notice 

[or  stipulation]  to  be  used  on  the  part  of  the  plaintiff  [or, 

defendant]  in  a  certain  action  now  pending  in  the   

court  for county,  state  of  Wisconsin,  wherein  A. . . . 

B . . . .  is  plaintiff  and  C . . . .  D . . . .  is  defendant. 

The  said  witness  being  first  duly  sworn  by  me  to 
testify  the  truth,  the  whole  truth  and  nothing  but  the 
truth  relative  to  said  action,  in  answer  to  oral  inter- 
rogatories propounded  by  E. . . .  F. . . .  who  appeared 
for  the  plaintiff,  deposed  and  made  answer  as  follows: 
My  name  is  L. . . .  M . . . . ;  my  age  is  ....  years.  I  re- 
side and  have  since  [give  time]  resided  at I  know  the 

parties  to  the  action  mentioned. 


Chapter  CXXXIII.]  1655  [Form  2409. 

Question.     [Here  write  out  question  in  full.] 

Objected    to    by   defendant    on    the    ground    [state 
ground  given]. 
Answer.     [Give  answer.] 

Upon  cross-examination  the  witness  testified  as  fol- 
lows: 
[Here  follow  with  cross-examination  and  re-examination, 
if  any,  in  the  same  manner  as  with  direct  examination.] 

[  Upon  concluding  let  the  witness  read  over  the  testimony  and 
make  all  corrections  which  he  desires  at  the  foot  of  the  whole 
deposition,  and  then  let  him  sign  at  the  end  of  the  whole.] 

0 P [official  title.] 

2409.    Certificate  to  be  attached  to  foregoing,  statutory 
form  (Wis.  Stats.  1913  sec.  4106). 

I,  0. . . .  P. . . .  [add  official  designation],  in  and  for  said 
county,  do  hereby  certify  that  the  above  described  depo- 
sition was  taken  before  me  at  my  ofTice,  in  the  town  of 

in  said  county,  on  the  ....  day  of ,  at  ....  o'clock, 

....  noon;  that  it  was  taken  at  the  request  of  the  plaintiff 
[or,  defendant,  or  other  person  procuring  it]  upon  verbal  [or 
written]  interrogatories;  that  it  was  reduced  to  writing  by 
myself  [or  by  deponent,  o/-  by  L. . . .  M . . . .,  a  disinterested 
person,  in  my  presence  and  under  my  direction];  that  it  was 
taken  to  be  used  in  the  action  of  A.  . . .   B.  .  . .  v.  C. . . . 

D . . . .   now  pending  in  the   court  [or  to  be  used  in 

some  proceeding  or  matter,  mentioning  it];  and 

That  the  reason  for  taking  such  deposition  was  [here  state 
the  true  reason]',  that  C . . . .  D . . . .  attended  at  the  taking  of 
such  deposition  [or:  that  a  notice  of  which  the  annexed  is  a 
copy  was  served  upon  C. . . .   D ,  . . .   on  the   ....   day  of 

,  19.  .,  or,  that  the  deposition  was  taken  in  pursuance 

of  the  annexed  stipulation];  that  said  deponent  before  ex- 
amination was  sworn  to  testify  the  truth,  the  whole  truth, 
and  nothing  but  the  truth,  relative  to  said  cause;  and  that 
said  deposition  was  carefully  read  to  [or  by]  said  deponent, 
and  then  subscribed  by  him. 

0....  P...., 
[Add  official  designation.] 


Forms  2410,  2411.]  1656  [Chapter  CXXXIII. 

2410.  Interrogatories  for  issuance  of  commission  (Wis. 
Stats.  1913  sees.  4113,  4114  and  circuit  court  rule 
XVII). 

STATE  OF  WISCONSIN. 
....  Court County. 


A. 

...  B...., 

Plaintiff, 

vs.              y 

C. 

...  D...., 

Defendant. 

INTERROGATORIES    to    be    propounded    to    L.... 

M ,  Esq.,  of  the  city  of ,  county  of ,  and 

state  of  ,  a  witness  to  be  produced,  sworn  and  ex- 
amined on  the  part  of  the  above-named  plaintiff  [or  defend- 
ant] under  a  commission  to  be  issued  out  of  and  under  the 
seal  of  the  court,  and  directed  to  0.  .  . .  P.  . . .,  Esq.,  of  the 

city  of ,  county  of ,  and  state  of ,  and 

to  such  other  person  as  may  be  named  commissioner  on  the 
J    rt  of  the  defendant  [or,  plaintiff]  above-named. 

First  interrogatory.  What  is  your  name,  age,  residence  and 
occupation? 

Second  interrogatory.  Do  you  know  the  parties  to  the  above 
entitled  action,  or  either  of  them,  and  if  yea,  how  long  have 
you  known  such  parties  or  party? 

[Continue  with  the  questions,  numbering  each,  and  add  the 
following  final  question]: 

Last  interrogatory.  Do  you  know  or  can  you  state  any 
matter  or  thing  that  may  tend  to  the  benefit  or  advantage  of 
either  or  any  of  the  parties  to  this  action?  If  yea,  state  the 
same  fully  and  at  large  in  your  answer  hereto,  as  if  specially 
interrogated. 

E....  F 

Plaintiff's^  Attorney. 

2411.    Notice  of  issuing  commission  upon  foregoing  in- 
terrogatories (Wis.  Stats.  1913  sec.  4114). 

STATE  OF  WISCONSIN. 
....  Court County. 


Chapter  CXXXIIL]  1657  IForm  2412 


A...  B...., 

Plaintiff, 
vs. 
C...  D..... 

Defendant. 


SIR:  Take  notice  that  at  the  expiration  of  ten  days  from 
the  date  of  the  service  of  this  notice  upon  you,  a  commission 
will  be  issued  out  of  said  court  to  take  the  deposition  of 

L M of  the  city  of   ,  county  of   

and  state  of ,  upon  certain  interrogatories,  of  which  a 

copy  is  herewith  served  upon  you,  and  such  cross-interroga- 
tories as  may  be  duly  served  and  filed  herein,  before  0 . . . . 
P.  . . .,  Esq.,  the  commissioner  named  in  the  caption  to  said 
interrogatories;  that  the  reason  for  which  said  deposition  is 
to  be  taken  is  that  the  said  L. . . .  M . . . .  is  a  necessary  and 
material  witness  for  said  A , . . .  B . . . .  on  the  trial  of  said 
action,  and  is  not  a  resident  of  the  state  of  Wisconsin,  but 

resides  in  the  ....  of ,  county  of ,  and  state  of 

[or  when  taken  before  issue:  that  the  said  L . . . . 

M . . . .  is  so  sick,  infirm  and  aged  as  to  afford  reasonable 
ground  to  apprehend  that  he  may  die  or  become  unable  to 
give  his  testimony  on  the  trial  of  this  action,  or  that  said 

L. . .  .  M . . . .  is  about  to  remove  to  the  state  of ,  so 

that  he  cannot  be  present  nor  give  his  testimony  on  the  trial 
of  this  action,  or  state  any  other  reason  which  may  exist]. 

[Date.] 

E....  F...., 

To  G. . . .  H. . . .,  Esq.,  Plaintiff's  Attorney. 

Defendant's  Attorney. 

2412.    Cross  interrogatories  with  proposal  of  additional 
commissioner  (Wis.  Stats.  1913  sec.  4114). 

[Title.] 

CROSS    INTERROGATORIES   to   be   propounded   to 

L .  . . .  M . . . . ,  of ,  county  of ,  state  of , 

before  0.  . . .  P Esq.,  of ,  a  commissioner  to  be 

appointed  to  take  the  deposition  of  said  witness  on  behalf 
of  the  plaintiff,  and  also  Q....  R....,  Esq.,  of  ...'..., 
an  additional  commissioner  whom  the  defendant  now  pro- 
poses to  act  with  said  0 . . . .  P , . . . ,  the  said  deposition  to  be 


Form  2413.]  1658  [Chapter  CXXXIII. 

used  upon  the  trial  of  the  above  entitled  action  on  the  part 
of  the  plaintifT  [or  defendant]. 

First  interrogatory.  [Insert  and  number  all  the  interroga- 
tories.] 

G....H 

Defendant's  Attorney. 

2413.    Commission  to  take  deposition  (Wis.  Stats.  1913 
sees.  4113-4115  and  circuit  court  rule  XVII). 

[Title.] 

The  State  of  Wisconsin,  to  0 . . . .  P. . . .,  of  the  ....  of 
,  county  of ,  and  state  of 

Whereas,  it  appears  unto  our  judge  of  our  circuit  court, 

for county,  state  of  Wisconsin,  that  Y. . . .  Z of 

the  ....  of ,  county  of ,  and  state  of ,  is 

[or  are!  [al  material  witness[es]  in  a  certain  cause  now  pend- 
ing in  our  said court,  between  A.  .  .  .  B .  . . .,  plaintiff, 

and  C. . . .  D. . . .,  defendant,  and  that  the  personal  attend- 
ance of  said  witness[es]  cannot  be  procured  at  the  trial  of 
said  cause: 

And  whereas  we,  in  confidence  of  your  prudence  and  fidel- 
ity, have  appointed  you,  and  by  these  presents  do  appoint 
you  [a]  commissioner[s]  to  examine  the  said  witness[es]. 

NOW  THEREFORE,  we  do  authorize  and  empower  you, 
at  a  time  and  place  to  be  fixed  by  you,  diligently  to  examine 
the  said  witnesses  on  the  interrogatories  and  cross-inter- 
rogatories attached  to  this  commission,  on  his  [or  their] 
corporal  oath[s]  first  taken  before  you,  and  cause  the  said 
examination  of  such  witness[es]  to  be  reduced  to  writing  and 
signed  by  such  witness[es]  and  by  yourself  [or  selves],  and 
then  return  the  same,  annexed  to  the  said  commission,  unto 
our  court  aforesaid  with  all  convenient  speed,  enclosed  under 
the  seal  of  you,  the  said  commissioner[s]. 

Witness,  the  Honorable  J . .  .  .  K .  .  .  . ,  judge  of  the 

court  of county,  state  of  Wisconsin,  at  the  ....  of 

,  county  of and  state  of  Wisconsin,  this  .... 

day  of ^19.. 

G....K....,  Clerk. 

L....  M...., 
Attorney. 


Chapter  CXXXIIL]  1659  [Form  2413. 

[Venue.] 

I,  C. . . .  K. . . .,  clerk  of  said  court,  do  hereby  certify  that 
the  interrogatories  and  cross-interrogatories  attached  and 
referred  to  in  the  within  commission,  are  the  originals,  as 
the  same  were  filed  in  my  office  in  the  action  herein  entitled. 

Witness,  my  hand  and  the  seal 

of   the    court   of    

[SEAL.]  county,   at  the    ....    of    , 

county  of    ,   and   state  of 

Wisconsin,  this  ....  day  of 

19.. 

C...  K....,  Clerk. 
[The  following  sections  of  the  statutes  and  rules  of  court  are 
usually  printed  on  the  back  of  the  commission  for  the  conveni- 
ence of  the  commissioners] : 

Wis.  Stats.  1913  sec.  4115.  The  commissioner  named  in  the  direct 
interrogatories  shall  fix  the  time  and  place  for  executing  the  commission, 
and  give  the  other  commissioner,  if  any,  one  day's  notice  thereof,  when  he 
resides  in  the  same  place,  and  when  not,  one  day's  notice  in  addition  for 
every  thirty  miles  of  distance  between  the  place  of  his  residence  and  the 
place  fixed  for  executing  the  commission.  If  the  notice  be  by  mail  double 
time  shall  be  allowed;  but  notice  may  be  waived  in  writing  or  by  appear- 
ance at  the  execution  of  the  commission.  If  there  be  two  commissioners, 
the  place  for  executing  the  commission  shall  be  fixed  in  the  county  where 
they  reside,  unless  they  agree  upon  another.  The  commissioner  named  in 
the  direct  interrogatories  shall  have  charge  of  and  return  the  deposition. 

Rule  XVII,  sec.  4.  At  the  time  and  place  fixed  for  executing  the  com- 
mission the  commissioner  or  commissioners  shall  proceed  to  execute  such 
commission  in  accordance  with  section  4115  Statutes  of  1913,  and  sec- 
tions 4,  5  and  6  of  this  rule,  copies  whereof  shall  be  transmitted  with  the 
commission  for  their  instruction.  If  either  of  the  commissioners  shall  not 
attend  at  the  time  and  place  so  fixed,  the  other  may  proceed  to  execute 
the  same  with  like  effect  as  if  both  were  present;  but  he  must  certify 
in  his  return  that  the  commissioner  so  absent  had  due  notice  of  the  time 
and  place  of  executing  the  same,  and  that  he  failed  to  attend  pursuant 
thereto. 

Sec.  5.  The  commissioner  or  commissioners  shall  proceed  to  execute 
the  same  as  follows:  The  commissioners,  or  one  of  them,  shall  publicly 
administer  an  oath  or  affirmation  to  each  witness  named  in  the  commission, 
that  the  answers  which  he  shall  make  to  each  of  the  interrogatories  pro- 
pounded to  him  shall  be  the  truth,  the  whole  truth,  and  nothing  but  the 
truth.  Each  interrogatory,  direct  and  cross,  shall  be  propounded  to  him, 
and  his  answer  thereto  be  correctly  reduced  to  writing,  and  with  any  ex- 
hibit thereto  be  annexed  to  and  returned  with  the  commission.  Each  wit- 
ness shall  subscribe  his  name  at  the  end  of  his  answers  to  the  interrogatories 
and  the  commissioner  or  commissioners  shall  subscribe  his  or  their  names 
at  the  foot  of  each  page  of  the  testimony.  If  any  exhibit  is  produced  and 
proved  or  referred  to  in  the  answer  of  any  witness,  it  shall  be  marked  as  an 
exhibit  by  some  convenient  designation,  either  by  letter  or  number,  by  the 


Form  2414.]  1660  [Chapter  CXXXIII. 

commissioners,  or  one  of  them,  and  be  referred  to  in  the  testimony  of  the 
witness,  and  shall  be  annexed  to  and  returned  with  the  deposition.  If  the 
paper  be  a  record  or  other  document  not  in  the  control  of  the  party  or  the 
commissioner,  it  shall  be  sufTicient  to  annex  a  copy,  stated  by  the  witness 
in  his  answers  to  be  a  true  copy  thereof.  The  commissioner  or  com- 
missioners shall  certify  in  their  return  that  each  witness,  before  giving 
his  evidence,  was  duly  sworn  or  afTirmed,  and  shall  also  state  the  time  when 
the  testimony  was  taken.  The  return  of  the  commissioner  or  commission- 
ers shall  be  indorsed  on  the  commission. 

Sec.  6.  The  proper  commissioner  shall  inclose  the  answers  to  all  the 
interrogatories  and  exhibits  in  a  suitable  envelope,  which  shall  be  prop- 
erly sealed,  and  direct  the  same  to  the  clerk  of  the  court  from  which  the 
commission  issued,  at  his  place  of  ofTice,  with  the  title  of  the  action  in- 
dorsed thereon,  and  the  package  shall  be  immediately  transmitted  to  him 
by  mail  or  express,  the  expense  thereof  to  be  returned  and  collected  with 
the  commissioner's  fees  in  the  action. 

2414.    Deposition  on  commission  and  return  of  commis- 
sioners (Wisconsin). 

[Venue.] 

Deposition  of  witnessfes]  produced  and  sworn  [or  af- 
firmed] and  examined  on  the  ....  day  of ,  19.  ., 

at  ......  in  said  county,  upon  the  annexed  interroga- 
tories and  cross-interrogatories,  under  the  annexed  com- 
mission issued  out  of  the court  for  the  county  of 

,  in  the  state  of  Wisconsin,  in  an  action  pending 

in  said  court  wherein  A ....  B ....  is  plaintiff,  and  C . . . . 
D . . . .,  defendant,  to  be  used  on  the  trial  thereof,  on  the 
part  of  the  plaintiff  [or,  defendant]. 
L . . .  .  M, . . .,  being  first  duly  sworn  [or  affirmed]  accord- 
ing to  the  directions  hereto  annexed,  deposes  and  says  as 
follows : 

To  the  first  interrogatory  he  says  [insert  answer]. 
To  the  second  interrogatory  he  says  [insert  answer  and  so 
continue]. 

[Let  each  witness  read  over  and  sign  his  testimony,  and  let 
the  commissioner  sign  at  the  foot  of  each  page.] 
[Venue.] 

I,  0 . . . .  P. . . .,  commissioner  named  in  the  annexed  com- 
mission, do  hereby  certify  that  the  above  deposition  was 

taken  before  me,  at  my  office  in  the  ....  of ,  in  said 

county,  on  the  ....  day  of ,  19.  .,  at  . . . .  o'clock  in 

the  ....  noon,  under  the  annexed  commission; 

That  it  was  taken  at  the  request  of  the  plaintiff  [or,  de- 
fendant] upon  the  written  interrogatories  and  cross-in- 
terrogatories, attached  to  said  commission,  and  hereunto; 


Chapter  CXXXIIL]  16G1  [Forms  2415,  2416. 

That  it  was  reduced  to  writing  by  myself  [or,  by  Q . . . . 
R.  . . .,  a  disinterested  person,  in  my  presence  and  under  my 
direction] ; 

That  it  was  taken  to  be  used  in  the  action  wherein  A . . . . 
B , . . .  is  plaintiff  and  G . . . .  D .  . . . ,  defendant,  now  pend- 
ing in  the court  of county,  and  that  the  reason 

for  taking  it  was  [here  state  reason  as  set  forth  in  the  caption 
to  the  interrogatories]; 

That  said  deponent[s]  before  examination  was  [or  were] 
sworn  to  testify  the  truth,  the  whole  truth,  and  nothing  but 
the  truth,  relative  to  said  cause;  and 

That  said  deposition  after  having  been  taken  was  carefully 
read  to  [or  by]  said  deponent,  and  then  subscribed  by  him. 

[Signature  of  commissioner  with  official  designation.] 

2415.  Notice  of  filing  of  deposition  taken  on  notice  (Wis- 

consin) . 

[Title.] 

To  G H ,  Esq., 

Attorney  for  the  defendant  above  named: 

SIR:     Please  take  notice  that  the  deposition  of  L.... 

M ,  a  witness  produced,  sworn  and  examined  on  behalf 

of  the  plaintiff  above  named,  before  0....  P...., a 

in  and  for  the  county  of and  state  of ,  and  a 

person  by  law  authorized  to  take  depositions,  taken  pursuant 
to  the  notice  hereinbefore  served  [or,  stipulation  hereinbe- 
fore entered  into],  has  been  duly  certified  to  and  returned  by 

said  ofTicer  to  the  clerk  of  the court  of county, 

and  has  been  filed  in  the  office  of  said  clerk,  and  that  said 
A . . . .  B . . . .  will  claim  the  right  to  use  said  deposition  on 
any  trial  of  said  action  that  may  be  had. 

[Date.] 

E....    F...., 
Attorney  for  PlaintifT. 

2416.  Notice  of  return  and  filing  of  commission  (Wis- 

consin) . 

[Title.] 
To  G. . . .  H. . . .,  Esq., 
Attorney  for  defendant  above  named: 
SIR:     Please  take  notice  that  the  commission  heretofore, 


Forms  2417,  2418.]  1662  [Chapter  CXXXIII. 

to-wit,  on  the  ....  day  of ,  19. .,  issued  in  the  above 

entitled  action,  under  the  seal  of  the  above  entitled  court, 
to  take  the  deposition  of  L. . . .  M . . .  .,  a  witness  to  be  pro- 
duced, sworn,  and  examined  on  behalf  of  the  plaintiff  above 
named,  has  been  duly  executed  and  returned  by  the  com- 
missioner therein  named,  to  the  clerk  of  the court  of 

county,  and  together  with  said  deposition  of  said  wit- 
ness has  been  filed  in  the  office  of  said  clerk,  and  that  said 
plaintiff  will  claim  the  right  to  use  said  deposition  on  any 
trial  of  said  action  that  may  be  had. 

[Date.]  E F , 

Attorney  for  Plaintiff. 

2417.  Notice  of  motion  to  suppress  deposition  (Wiscon- 

sin). 

[Title.] 

SIR :  Please  take  notice  that  upon  the  deposition  of  L . . . . 
M . . . . ,  on  file  in  this  action  [and  upon  the  affidavit  hereto 
annexed,  if  an  affidavit  be  made],  the  [defendant]  by  his 
counsel  will  move  the  court,  at,  etc.,  at  the  opening  of  court 
on  that  day  or  as  soon  thereafter  as  counsel  can  be  heard,  to 
suppress  said  deposition  on  the  ground  that  [here  specify 
the  grounds]. 

[Date.]  G....  H...., 

Attorney  for  Defendant. 

[Address.] 

[If  no  notice  of  filing  or  return  has  been  given,  or  if  the  depo- 
sition has  been  returned  so  recently  before  the  trial  as  not  to 
give  time  for  the  making  of  a  written  motion,  an  oral  motion 
to  suppress  may  be  made  at  the  opening  of  the  trial.  In  Min- 
nesota a  motion  to  suppress  must  be  made  within  ten  days 
after  service  of  notice  of  the  return  of  the  deposition,  otherwise 
defects  and  irregularities  are  waived.  Minn.  Gen.  Stats.  1913 
sec.  8393.] 

2418.  Order  suppressing  deposition  (Wisconsin). 

[Title.] 

The  motion  of  the  defendant  above  named  to  suppress  the 
deposition  of  L . . . .  M . . . .  heretofore  taken  in  this  action, 
having  come  on  to  be  heard  before  the  court  on  this  .... 


Chapter  CXXXIIL]  1663  [Form  2419. 

day  of ,  19.  . ;  on  reading  and  filing  the  affidavit  of 

C . . . .  D . . . .,  and  upon  the  pleadings  in  said  action  and  the 
said  deposition,  after  hearing  G. . . .  H. . . .,  Esq.,  attorney 
for  defendant,  and  E....  F....,  Esq.,  attorney  for  the 
plaintiff;  being  now  fully  advised  in  the  premises, 

ORDERED,  that  the  deposition  of  L M taken 

herein  under  commission,  on  the  ....  day  of ,  19. ., 

before  0....  P....,  Esq.,  [commissioner],  [or  designate 
officer],  be  suppressed  and  be  not  received  in  evidence  in  this 
action. 

That  the  plaintiff  pay  to  the  defendant  ten  dollars,  the 
costs  of  this  motion,  within  ....  days  from  date 

By  the  Court: 

[Date.]  J . . . .   K Circuit  Judge. 

2419.  Affidavit  on  which  to  apply  to  a  justice  for  the 
taking  of  testimony  of  witnesses  within  the 
state  (Minn.  Gen.  Stats.  1913  sec.  8381  et  seq.). 

[Title.] 
[Venue.] 

A. . . .  B ,  being  duly  sworn,  says  that  he  is  the  plaintiff 

in  the  above  entitled  action;  that  the  same  is  a  civil  action  and 
was  commenced  by  the  personal  service  of  process  on  the 

defendant  on  the   ....   day  of ,  19.  .,  [or  otherwise, 

according  to  the  fact],  and  is  now  pending  in  said  court;  that 
the  following  persons,  viz.  [name  them,  with  residences],  are 
each  and  all  necessary  and  material  witnesses  on  behalf  of 
the  plaintiff  in  the  above  entitled  action,  and  that  their 
testimony  is  wanted  in  said  action  by  said  plaintiff,  and  that 
said  witnesses  all  live  more  than  thirty  miles  from  the  place 
of  trial  of  this  action,  to-wit  [state  where  they  live],  [or,  that 
said  witnesses  are  about  to  go  out  of  the  state  of  Minnesota, 
and  not  to  return  until  after  the  trial  of  this  action,  or  state 
other  statutory  cause]. 

WHEREFORE  plaintiff  requests  that  the  depositions  of 
said  witnesses  be  taken,  as  provided  by  law. 

A....  B.... 
[Jurat] 


Form  2420.]  1664  [Chapter  CXXXIII. 

2420.    Order  by  justice  for  taking  deposition  within  the 
state  (Minn.  Gen.  Stats.  1913  sec.  8382). 

[Title.] 

It  appearing  to  the  undersigned  by  the  affidavit  of  A. . . . 
B . . . .  that  the  above  entitled  action  is  a  civil  action,  and 
that  the  same  has  been  commenced  and  is  pending  in  the 
above  mentioned  court,  and  that  L . . . .  M .  .  .  .  and  0 .  .  .  . 

P. . . .,  of ,  in  said  state,  are  necessary  and  material 

witnesses  on  behalf  of  the  plaintifT  in  such  action,  and  that 
the  testimony  of  said  witnesses  is  wanted  in  such  action  by 
the  plaintiff,  and  that  their  depositions  should  be  taken,  for 
the  reason  [here  state  reason,  as  set  forth  in  the  affidavit]. 

NOW  THEREFORE,  on  apphcation  of  said  A ....  B 

I,  the  undersigned,  a  justice  of  the  peace  within  and  for  the 

county  of in  the  state  aforesaid,  do  hereby  appoint 

....  o'clock  in  the noon,  on  the  ....  day  of 

19 . . ,  at  . . .  . ,  in  the  ....  of ,  in  said  county  of , 

and  state  aforesaid,  as  the  time  and  place  for  taking  the 
deposition  of  said  witnesses. 

It  is  further  ordered  that  a  copy  of  this  order  be  served 
upon  the  said  C . . . .  D . , . . ,  and  E .  . . .  F .  . . . ,  Esq.,  his 
attorney,  at  least  ....  days  before  the  time  herein  appointed 
for  the  taking  of  the  said  deposition. 

[Date.] 

Y. . . .  Z. . . .,  Justice  of  the  Peace  in 

and  for County,  Minn. 

[Venue.] 

I,  the  undersigned,  a  justice  of  the  peace  in  and  for  the 
county  and  state  aforesaid,  do  hereby  certify  that  I  have  com- 
pared the  foregoing  copy  of  order  with  the  original  thereof, 
issued  by  me  this  day  and  now  in  my  possession,  and  that 
such  copy  is  a  true  and  correct  transcript  of  such  original, 
and  of  the  whole  thereof. 

In  witness  whereof,  I  have  hereunto  set  my  hand,  this 

day  of 19.. 

Y....Z 

Justice  of  the  Peace  Aforesaid. 


Chapter  CXXXIIL]  1665  [Forms  2421-2423. 

2421.  Notice  of  taking  of  deposition  without  the  state 

(Minn.  Gen.  Stats.  1913  sees.  8381,  8382). 

[Title.] 
[Venue.] 

Take  notice  that  the  deposition  of  M . . . .  N . . . . ,  a  wit- 
ness in  said  action,  on  the  part  of  the  plaintiff,  residing  at  the 

city  of in  the  state  of ,  to  be  used  on  the  trial 

of  said  action,  will  be  taken  by  and  before  0. . . .  P. . . ., 
Esq.,  a  [give  official  title]  there  residing  and  duly  authorized 
by  law  to  administer  oaths  therein,  at  his  oflfice,  in  the  said 

city  of state  of ,  on  the  ....  day  of , 

19. .,  at  ....  o'clock  in  the  ....  noon  of  that  day,  and  that 
said  examination  maybe  adjourned  from  day  to  day  until  the 
same  is  closed,  and  that  the  reason  for  taking  said  deposition 
is  *  that  said  witness  is  without  the  state  of  Minnesota. 

[Date.]  E....    F...., 

Attorney  for  Plaintiff. 

ToC...  D 

Defendant  Above  Named. 

And  to  G. . . .  H Esq., 

His  Attorney. 

2422.  Notice  of  taking  deposition  within  the  state  (Minn. 

Gen.  Stats.  1913  sees.  8381,  8382). 

[Proceed  as  in  last  preceding  form  to  the  *,  and  continue] : 
that  said  witness  lives  more  than  thirty  miles  from  the  place 
of  trial  of  this  action,  to-wit,  at  [place  of  residence].  [Or,  that 
said  witness  is  about  to  go  out  of  this  state  not  intending  to 
return  in  time  for  the  trial  of  this  action,  or  that  such  wit- 
ness is  so  sick,  or  infirm,  or  aged,  as  to  make  it  probable  that 
he  will  not  be  able  to  attend  at  the  trial,  or  hearing]. 

[Conclude  as  in  last  preceding  form.] 

2423.  Stipulation  for  the  taking  of  a  deposition  (Min- 

nesota). 
[Title.] 

IT  IS  HEREBY  STIPULATED  by  and  between  the 
parties  plaintiff  and  defendant  in  the  above  entitled  action, 
that  the  deposition  and  testimony  of  E. . . .  F. . . .,  residing 

at in  the  state  of ,  as  a  witness  on  behalf  of 

said  plaintiff,  shall  be  taken  by  and  before  any  notary  public 
105 


Form  2423.]  1666  [Chapter  CXXXIII. 

residing  at ,  whose  official  character  as  such  notary 

public  shall  be  sufficiently  proven  by  his  official  seal  and  an 
impression  thereof  affixed  to  or  stamped  upon  his  return 
hereto;  and  such  notary  public  is  hereby  agreed  upon  and  ap- 
pointed to  take  the  deposition  of  said  witness  E . . . .  F . . . . 
And  the  interrogatories  and  cross-interrogatories  (if  any) 
hereto  attached  shall  go  out  with  this  stipulation,  to  be 
propounded  to  said  witness  after  said  witness  is  produced 
and  sworn  to  testify  the  whole  truth  and  nothing  but  the 
truth  relative  to  said  cause;  and  said  parties  hereby  waive 
any  and  all  objections  to  such  notary  public,  and  waive  the 
issuing  of  any  commission  from  said  court  herein,  and  here- 
by agree  that  said  deposition  of  said  witness  E. . . .  F. . . ., 
shall  have  the  same  force  and  effect  as  if  taken  upon  com- 
mission duly  issued  herein;  and  said  parties  waive  any  and 
all  notices  and  prerequisite  forms  required  by  law  or  rules  of 
court  for  the  taking  of  depositions;  but  said  parties  reserve 
to  themselves  the  right  to  object  to  the  competency 
and  admissibility  of  said  interrogatories  and  cross-inter- 
rogatories, and  to  any  of  the  same,  and  to  any  of  the  answers 
thereto  respectively,  in  like  manner  and  upon  the  same 
grounds  as  if  said  witness  was  present  and  orally  examined 
in  open  court  upon  the  trial  of  this  cause  which  is  at  issue 
and  in  said  court  depending. 

[The  following  instructions  are  usually  sent  with  the  commis- 
sion or  notice  for  the  convenience  of  the  officer.] 

1st.  The  examination  must  commence  at  the  place  and  within  one 
hour  from  the  time  stated  in  the  notice  or  stipulation,  and  the  proceed- 
ings may  be  adjourned  from  day  to  day  until  the  examinations  are  closed, 
except  when  the  deposition  is  taken  pursuant  to  stipulation,  when  the 
terms  of  the  stipulation  must  be  followed. 

2d.     Before  examination,  each  witness  must  be  sworn  as  follows: 

"You  do  solemnly  swear  that  the  evidence  you  shall  give  relative  to  the 
cause  now  under  consideration  shall  be  the  whole  truth  and  nothing  but 
the  truth,  so  help  you  God." 

3d.  In  making  up  the  record,  first  give  state,  county,  court  and  title  of 
cayse  as  found  in  the  notice,  stipulation  or  commission. 

4th.     Introduce  the  testimony  of  each  witness  as  follows: 

"Testimony  of ,  in  the  county  of , 

state  of ,  taken  before  0 P ,  a , 

by  virtue  of  the  notice  (stipulation  or  commission  as  the  case  may  be) 
hereto  attached  as  stated  in  the  return  thereto." 

5th.  In  case  the  deposition  is  taken  under  a  commission  and  written 
interrogatories,  do  not  copy  the  interrogatories,  but  before  each  answer 
add  the  following: 


Chapter  CXXXIIL]  1667  [Form  2424. 

"To  the  first  interrogatory  the  witness  deposes  and  says," 
and  proceed  in  like  manner  with  the  answer  to  each  of  the  interrogatories. 

6th.  In  case  the  deposition  is  taken  under  notice  or  stipulation  with- 
out written  interrogatories,  the  officer  taking  the  deposition  should  write 
the  question  as  it  is  put  to  the  witness;  then  follow  with  the  answer  of  the 
witness  as  given  by  him,  and  so  on  to  the  end  of  the  deposition. 

7th.  The  testimony  of  each  witness  when  completed  must  be  read  over 
to  him  by  the  officer  taking  the  same,  when  the  witness  may  add  to  or 
qualify  the  same  as  he  may  desire. 

8th.  The  witness  must  sign  his  name  upon  each  piece  of  paper  upon 
which  any  portion  of  his  testimony  is  taken,  and  at  the  end  of  the  deposi- 
tion the  witness  must  sign  his  name  and  the  officer  add  jurat,  as  follows: 

Subscribed  and  sworn  to  before  me  this day  of 

19 

0 P , 

(Title  of  Officer.) 

9th.  The  notice,  stipulation  or  commission,  as  the  case  may  be,  and 
the  return,  must  be  annexed  to  the  deposition.  The  return  should  be  in 
the  following  form. 

State  of ) 

County  of \  ^^^ 

BE  IT  KNOWN,  that  I  took  the  annexed  deposition  pursuant  to  the 

annexed  notice;  that  I  was  then  and  there  a ; 

that  I  exercised  the  power  of  that  office  in  taking  such  deposition;  that  by 
virtue  thereof  I  was  then  and  there  authorized  to  administer  an  oath; 
that  each  witness  before  testifying  was  duly  sworn  to  testify  the  whole 
truth  and  nothing  but  the  truth  relative  to  the  cause  specified  in  the  an- 
nexed notice  (stipulation  or  commission  as  the  case  may  be);  that  the 
testimony  of  each  witness  was  correctly  read  over  to  him  by  me  before  he 
signed  the  same;  that  the  examination  was  conducted  on  behalf  of  the 

plaintiff    by  ;  that    the    examination 

was  conducted  on  behalf  of  the  defendant  by ; 

that  the  taking  of  said  deposition  was  commenced  at  the  time  and  place 
specified  in  the  notice  (stipulation  or  commission  as  the  case  may  be). 

"Witness  my  hand  and  official  ?eal,  this day  of 

19 

0 P , 

(Title  of  Officer.) 

10th.  Form  the  papers  into  one  package,  fastened  securely  in  the  fol- 
lowing order:  Notice  (stipulation  or  commission  as  the  case  may  be), 
interrogatories  and  cross-interrogatories  (if  any),  deposition,  exhibits 
(if  any)  and  return.  Add  a  minute  of  the  fees  of  officer  and  witness  and 
by  whom  paid. 

Inclose  the  package  in  an  envelope  addressed  to 


Across  the  end  of  the  envelope  endorse  "Deposition  of 

in  case  of  " 

The  package  must  be  sent  by  mail  directed  as  above,  postage  prepaid. 

2424.  Certificate  to  deposition  taken  under  notice,  or- 
der or  commision  (Minn.  Gen.  Stats.  1913  sec. 
8388). 

[Venue.] 
Be  it  known  that  I  took  the  annexed  depositions  pursuant 


Form  2425.]  1668  [Chapter  CXXXIII. 

to  the  annexed  notice  [or  order,  or  commission];  that  I  was 
then  and  there  [state  official  title];  that  I  exercised  the  power 
of  that  office  in  taking  such  deposition;  that  by  virtue  there- 
of I  was  then  and  there  authorized  to  administer  an  oath; 
that  each  witness,  before  testifying,  was  duly  sworn  to 
testify  the  whole  truth  and  nothing  but  the  truth  relative  to 
the  cause  specified  in  the  annexed  notice  [or  order];  that  the 
testimony  of  each  witness  was  carefully  read  over  to  him  by 
me  before  he  signed  the  same  [if  the  examination  was  oral] ; 
that  the  examination  was  conducted  on  behalf  of  the  plaintiff 

by  E. . . .  F and  on  behalf  of  the  defendant  by  G. . .  . 

H . . . .  and  [if  the  deposition  was  taken  within  the  state]  that 
the  reason  for  taking  said  deposition  was  [here  state  reason]. 

Witness  my    hand    [and  ^eal  this    ....   day  of   

19.. 

2425.    Affidavit  on  which  to  apply  for  commission  (Minn. 
Gen.  Stats.  1913  sec.  838,4). 

[Title.] 
[Venue.] 

A . . . .  B . . . .,  being  duly  sworn,  says  that  he  is  the  plaintifT 
in  the  above  entitled  action;  that  the  same  is  a  civil  action 
commenced  by  the  service  of  summons  personally  on  de- 
fendant, on  the day  of ,  19. .  [or  otherwise,  ac-. 

cording  to  the  fact]  and  that  the  same  is  now  pending  in  said 
court;  that  the  time  for  answering  the  complaint  herein  has 
expired,  and  that  defendant  has  not  answered  or  demurred  to 
said  complaint  [o/-,  that  issue  of  fact  was  joined  in  said  action 
by  service  of  an  answer  to  said  complaint  on  the  ....  day 
of ,  19 . . ;  that  one  M . . . .  N . . .  .  is  a  material  wit- 
ness in  the  prosecution  of  this  action,  whose  testimony  is 

desired  by  the  plaintiff,  and  that  said  M N does  not 

reside  in  this  state,  but  resides  in  the  city  of ,  state  of 

,  and  that  his  personal  attendance  on  the  trial  of  this 

action  cannot  be  secured. 

WHEREFORE  affiant  appHes  for  the  issuance  of  a  com- 
mission out  of  this  court  to  take  the  deposition  of  said 

M. . . .  N as  provided  by  law. 

A..,.  B.... 
[Jurat.] 


Chapter  CXXXIII.]  1669  [Form  2426-2429. 

[//  issue  has  been  joined  in  the  action,  eight  days'  notice  of 
this  application  must  be  served  on  the  adverse  party.] 

2426.  Notice  of  application  for  commission  (Minn.  Gen. 

Stats.  1913  sec.  8384). 

[Title.] 

SIR:  Take  notice  that  upon  the  affidavit  of  A. . . .  B . . . ., 
herewith  served  upon  you,  and  upon  the  pleadings  herein, 
heretofore  served  and  filed,  the  undersigned  will  apply  to 

the court  [or  Judge,  naming  him],  at [state  time 

and  place],  for  the  issuance  of  a  commission  out  of  said  court 

to  take  the  testimony  of  M . . . .  N .  . . .,  of ,  state  of 

,  as  a  witness  for  the  plaintiff  in  this  action. 

[Date.] 

E....F...., 

[Address.]  Plaintiff's  Attorney. 

2427.  Order  for  issuance  of  commission. 

[Title.] 

Upon  the  affidavit  of  A ... .  B . . . . ,  ffied  herein,  due  notice 
having  been  given  to  the  defendant's  attorney,  of  the  ap- 
plication for  the  issuance  of  a  commission  in  this  action  to 
take  the  testimony  of  L . . . .  M . . . .  as  a  witness  for  the 
plaintiff, 

ORDERED,  that  a  commission  issue  out  of  this  court  to 

0. . . .  P. . . .,  Esq.,  [give  title],  of ,  state  of ,  to 

take  the  testimony  of  the  said  L. . . .  M and  return  the 

same  to  this  court. 

[Date.] 

Y....  Z. ...,  Judge. 

2428.  Interrogatories  and  cross-interrogatories  for  de- 

position taken  on  commission  (Minnesota). 

[These  may  substantially  follow  the  forms  heretofore  given 
for  use  in  Wisconsin.    See  Forms  2410  and  2412.] 

2429.  Notice  of  settlement  of  interrogatories   (Minne- 

sota; rule  XXX,  rules  district  court). 

[Title.] 

To  G. . . .  H ,  Esq.,  Attorney  for  the  Defendant: 


Form  2430.]  1670  [Chapter  CXXXIII. 

TAKE  NOTICE  that  on  the day  of ,  19.  .,  at 

o'clock  A.  M.,  the  undersigned  will  apply  to  Hon.  J . . . . 

K Judge,  etc.,  at  his  chambers  in   [or,  to  the 

court,  at  the  courthouse,  etc.],  for  settlement  of  the 

interrogatories  and  cross-interrogatories  heretofore  served 
and  proposed,  to  be  administered  to  the  \v  tness  L.... 
M. ,  upon  the  taking  of  his  deposition  in  the  above  en- 
titled action, 

[Date.]  Yours,  etc., 

F  F 

Attorney  for  Plaintiff. 

2430.    Commission  to  take  deposition  (IVIinnesota). 

[Title.] 
[Venue.] 

The  state  of  Minnesota  to of in  the  .... 

of 

GREETING:  Whereas  it  appears  that  the  above  en- 
titled action  is  now  pending  in  this  court,  and  that  issue  was 

joined  therein ,  19.  .  [or  that  defendant  is  in  default] 

and  that  M . . . .  N ,  of ,  in  the  county  of , 

and  state  of ,  is  a  material  witness  on  the  part  of  the 

plaintiff  in  the  said  action,  whose  personal  attendance  can- 
not be  procured  on  the  trial  of  said  action  [and  due  notice 
of  the  said  application  having  been  given  as  required  by  law]. 

Now  therefore,  know  ye,  that  reposing  full  confidence  in 
your  prudence  and  fidelity,  you  are  hereby  appointed  sole 
commissioner  to  examine  said  witness,  and  are  hereby  author- 
ized and  required  to  cause  him  to  come  before  you  at  such 
time  and  place  as  you  may  therefor  designate  and  appoint 
and  carefully  to  take  his  testimony  upon  all  interrogatories 
and  cross-interrogatories  attached  to  these  presents,  and 
none  others,  under  the  oath  or  affirmation  of  said  witness  by 
you  first  in  that  behalf  duly  administered,  and  the  same, 
when  thus  taken  and  signed  and  certified  by  you,  together 
with  this  commission,  and  the  papers  hereto  annexed,  you 

will  return  to at ,  in  said  county  of 

,  with  all  convenient  speed. 

Witness,  Hon.  Y. . . .  Z. . . .,  at 

[SEAL.]  aforesaid,  this  ....  day  of ,  19. . 

G K . . . . ,  Clerk. 


Chapter  CXXXIIL]  1671  [Form  2431-2433. 

2431.  Return  and  certificate  of  commissioner  upon  tak- 

ing deposition   (Minnesota  district  court  rule 
XXX). 

[The  caption  of  the  return  and  body  of  the  deposition  may 
be  substantially  as  in  Form  2414,  and  the  certificate  as  follows]: 

I,  0. . . .  P. . . .,  commissioner  named  in  the  within  and 
above  written  commission,  do  certify  that  the  said  commis- 
sion was  executed,  and  the  testimony  of  L. . . .  M . . . .  was 

taken  before  me  at  my  office.  No in  the  city  of 

state  of on  the  ....  day  of at  ....  o'clock  in 

the  ....  noon,  and  was  reduced  to  writing  by  myself  [or 
by  deponent,  or  by  N ... .  D . . . . ,  a  disinterested  person,  in 
my  presence  and  under  my  direction];  that  the  said  testi- 
mony was  taken  by  and  pursuant  to  the  authority  and  re- 
quirements of  the  said  commission,  and  upon  the  inter- 
rogatories annexed  and  herewith  returned.  The  said  wit- 
ness, before  examination,  was  sw^orn  to  testify  to  the  whole 
truth  and  nothing  but  the  truth  relative  to  the  cause  specified 
in  said  commission,  and  the  testimony  of  said  witness  was 
carefully  read  to  [or  by]  said  witness  [by  me]  and  then  sub- 
scribed by  him  in  my  presence. 

0....  P...., 
Commissioner. 

[The  witness  must  sign  his  name  or  make  his  mark  at  the 
end  of  his  testimony  and  upon  each  piece  of  paper  on  which  any 
part  of  his  testimony  is  written.] 

2432.  Notice  of  motion  to  suppress,  and  order  thereon 

(Minnesota) . 

[These  may  follow  substantially  Forms  2417  and  2418,  here- 
tofore given  for  use  in  Wisconsin.] 

2433.  Notice  of  taking  deposition  (Iowa  Code  1907  sec. 

4687). 

[Title.] 

TAKE  NOTICE  that  the  deposition  of  L IVI of 

county  of ,  a  witness  on  behalf  of  the  plaintiff 

in  the  above  entitled  action  will  be  taken  before  0 . . . .  P . . . . , 

Esq.,  a  [give  official  title],  at  his  office  in  the  said  city  of 

on  the  ....  day  of ,  19.  .,  at  ....  o'clock  A.  M.,  to  be 


Forms  2434,  2435.]  1672  [Chapter  CXXXIII. 

read  as  evidence  on  the  trial  of  this  cause  and  that  the  same 
will  be  continued  from  day  to  day  until  completed. 
[Date.] 

E....  F 

To  G. . . .  H. . . .,  Esq.,  Attorney  for  Plaintiff. 

Attorney  for  Defendant. 

2434.  Notice  of  issuing  of  commission  (Iowa  Code  Ann. 

1897  sec.  4689). 

You  are  hereby  notified  that  on  the  ....  day  of , 

19. .,  at  ....  o'clock  . .  M,  there  will  be  issued  from  the 
ofTice  of  the  clerk  of  the  district  court  in  and  for  the  county 

of Iowa,  a  commission  in  the  above  entitled  action, 

directed  to  0. . . .  P. . . .  [give  his  official  title],  of  the  city  of 

state  of ,  directing  him  to  take  deposition  of 

[insert  names  of  witnesses]  upon  the  several  interrogatories 
served  herewith.  The  same  when  so  taken  to  be  read  upon 
the  trial  of  the  above  entitled  cause  on  the  part  of  said 
plaintiff. 

Dated  at  ....  Iowa,  this  ....  day  of ,  19 . , 

E....F...., 
Plaintiff's  Attorney. 

To  C D ,  Defendant. 

And  to  G H ,  Esq.,  His  Attorney. 

2435.  Interrogatories  to  accompany  the  foregoing  no- 

tice (Iowa). 

[Title.] 

INTERROGATORIES  to  be  propounded  to  L. . . . 
M ....  in  pursuance  of  the  commission  herein  to  be  issued. 

Int.  1.  State  your  name,  age,  occupation  and  place  of 
residence. 

Int.  2.  Are  you  acquainted  with  the  parties  to  this  suit, 
or  either  of  them,  and  if  so,  how  long  have  you  known  them  or 
either  of  them? 

[Here  follow  with  the  questions  necessary  to  bring  out  the 
facts  sought  for:  the  deposition  must  show  affirmatively  that  a 
cause  for  taking  the  same  exists,  unless  the  fact  appears  else- 
where in  the  record.    Iowa  Code  Ann.  1897,  sec.  4709.] 


Chapter  CXXXIIL]  1673  [Forms  2436,  2437. 

2436.  Cross  interrogatories  to  be  filed  by  clerk,  if  none 

be  filed  by  adverse  party  (Iowa  Code  Amu  1897 
sec.  4692). 

[Title.] 

The  defendant,  not  having  filed  any  cross-interrogatories 
in  the  above  entitled  action,  and  the  time  for  fiUng  same 
having  expired,  I,  Y. . . .  Z. . . .,  clerk  of  said  court,  do  file 
the  following  cross-interrogatories,  to  be  propounded  to  the 
witness  L . . . .  M . . . . ,  viz. : 

Int.  1.  Are  you  directly  or  indirectly  interested  in  this 
action,  and  if  interested,  explain  the  interest  you  have? 

Int.  2.  Are  all  your  statements  in  the  foregoing  answers 
made  from  your  personal  knowledge,  and  if  not,  do  your  an- 
swers show  what  are  made  from  your  personal  knowledge, 
and  what  from  information,  and  the  source  of  the  informa- 
tion? If  not,  show  what  is  from  information  and  give  its 
source. 

Int.  3.  State  everything  you  know,  concerning  the  sub- 
ject of  this  action  favorable  to  either  party. 

Y . . . .  Z . . . .,  Clerk,  etc. 

2437.  Commission  to  take  deposition  (Iowa). 

[Title.] 

[Venue.] 

To  0 P ,  Esq.  [Give  title.] 

You  are  hereby  authorized  and  required,  at  such  time  and 

place  as  you  may  designate,  in  the  county  of  and 

state  of to  cause  to  come  before  you  L. . . .  M . . . ., 

of in  said  county,  for  the  purpose  of  taking  his  depo- 
sition upon  the  interrogatories  and  cross-interrogatories 
hereto  annexed,  which  depositions  are  to  be  used  in  evidence 
on  the  trial  of  the  above  entitled  cause  now  pending  in  the 
district  court  of county,  Iowa. 

WITNESS  [name  of  clerk],  clerk  of  said  district  court  of 

said  county,  and  the  seal  thereof  hereto  affixed,  at 

this  ....  day  of ,  19. . 

C....K...., 
[SEAL.]  Clerk,  etc. 


Form  2437.]  1674  [Chapter  CXXXIII. 

[The  following  instructions  to  the  officer  accompany  each 
commission]: 

THE    OFFICER    TAKING    THE    DEPOSITION    WILL    OBSERVE    THE    FOLLOWING 
FORMS     AND     MODE     OF     PROCEEDING,     COMMENCING     THUS: 

Depositions  of  witnesses  produced,  sworn  and  examined  at 

in  the  county  of state  of 

before   me    in 

pursuance  of  the  annexed  agreement  to  me  directed  in  an  action  now  pend- 
ing in  the  District  Court  of  the  State  of  Iowa,  within  and  for 

County,  where  is 

plaintiff  and  is  defendant, 

on  behalf  of  the 

being  produced,  sworn  or  affirmed  and  examined  on  the  part  of  the 

deposes  as  follows:  In- 
terrogatories shall  be  inserted  by  number  only,  not  written  out,  and  the 
answer  written  out  immediately  thereunder. 

Every  deposition  must  be  reduced  to  writing  by  some  person  who  is 
neither  of  the  parties,  attorney  of  either,  nor  in  any  wise  interested  in  the 
event  of  the  suit,  in  the  presence  of  the  officer  before  whom  it  is  taken,  and 
signed  by  the  witness. 

If  any  paper  or  exhibit  is  produced  and  proved,  or  referred  to  by  a  wit- 
nes?,  it  should  be  described  in  his  deposition,  and  marked  and  referred  to 
by  the  deponent,  in  such  a  manner  that  it  may  be  identified  when  the  dep- 
osition is  read,  and  all  such  papers  and  exhibits  must  be  attached  to  and 
returned  with  the  deposition.  The  officer  taking  the  deposition  will  aji- 
nex  at  the  foot  of  the  deposition  of  each  witness  the  following  certificate: 

I,  (name  of  commissioner  and  style  of  office,  if  the  agreement  is  directed 

to  him  in  his  official  character)  within  and  for 

county,  and  state  of hereby  certify  that  in 

pursuance  of  the  annexed  agreement  to  me  directed,  I  caused  to  come  be- 
fore me  at  my  office  in  [name  of  place  and  county  where  the  depositions  are 

taken)  on  the day  of  1 , 

who  was  then  and  there  by  me  sworn  and  examined,  and  their  testimony 

taken  and  correctly  and  fully  written  down  by  me  (or  by 

a  disinterested  person,  under  my  direction  and  in  my  presence),  and  in  the 
presence  of  said  witnesses,  and  after  being  by  me  read  over  to  the  said  wit- 
ness, the  same  was  subscribed  and  sworn  to  by  him  in  my  presence. 

WITNESS  my  hand  and  official  seal  hereto  affixed  this 

day  of  ,    1 ,    at    (here 

state  place  of  taking  deposition) 

Then  proceed  with  other  depositions,  (if  any),  in  the  same  form  annex- 
ing a  like  certificate  to  each. 

When  all  the  witnesses  who  appear  have  been  sworn  and  examined  and 
their  depositions  reduced  to  writing,  subscribed  and  certified  to  as  above, 
the  officer  will  attach  to  the  depositions  all  papers  and  exhibits  proved  or 
referred  to  in  the  examination,  the  agreement  and  notice  (herewith  en- 
closed) with  the  following  certificate,  endorsed  thereon,  or  attached  thereto. 

State  of ) 

County  of f  ^^' 

I,  {name  of  commissioner  and  style  of  office,  if  agreement  is  directed  to 

him  in  his  official  character),  within  and  for  

county,  state  of ,  hereby  certify  that  in  pursuance 

of  the  annexed  agreement  to  me  directed,  I  caused  to  come  before  me  at 


Chapter  CXXXIIL]  1675  [Form  2437. 

my  office  in   {name  the  place  and  county  where  the  depositions  are  taken 

and  also  set  forth  the  names  of  (he  witnesses  examined)   on  the 

day  of  1 ,  who  were  then  and  there 

by  me  sworn  and  examined,  and  their  testimony  taken  and  correctly 

and  fully  written  down  by  me  (or  by 

a  disinterested  person,  under  my  direction  and  in  my  presence),  and  in  the 
presence  of  said  witnesses,  and  after  being  by  me  read  over  to  the  said 
witnesses,  the  same  was  subscribed  and  sworn  to  by  them  respectively  in 
my  presence,  and  their  depositions  are  now  herewith  returned.  I  further 
certify  that  neither  of  the  parties,  nor  the  agent  or  attorney  of  either,  was. 
present  during  the  examination  of  any  of  said  witnesses  {or  if  they  were 
present  state  the  facts). 

Witness  my  hand  and  official  seal  hereto  affixed  this 

day  of ,  1 ,  at  {here  state   place  of  taking 

depositions). 

Any  exhibits  offered  and  identified  shall  be  referred  to  in  the  certificate, 
and  the  certificate  shall  show  that  same  are  a  true  copy  thereof,  is  attached 
to  and  returned  with  the  depositions.  When  the  oath  is  administered  to 
the  witness  by  some  other  person,  the  officer's  certificate  shall  cite  such 
fact  stating  his  name  and  official  character. 

When  depositions  are  taken  before  an  officer  not  having  a  seal,  unless  so 
done  by  agreement  of  parties,  his  signature  and  official  character  must  be 
authenticated  by  the  certificate  of  the  Clerk  of  a  Court  of  Record,  or  that 
of  the  officer  having  in  charge  the  seal  of  the  State,  which  may  be  in  the 
following  form: 

It  is  HEREBY  CERTIFIED,  that  

on  {here  insert  the  date  at  which  the  Deposition  was  taken  and  certified). 

was,  (and  now  is) 

{state    the    style    of    ofjlce) State  of 

duly  commissioned,  and  acting  as 

such,  and  that  full  faith  and  credit  are  due  to  his  act>  as  such. 

IN  TESTIMONY  WHEREOF,  I,  A.  B.  {here  state  the  style  of  office), 
have  hereunto  subscribed  my  name,  and  affixed  tiie  seal  of  said  Court,  at 
my  office,  this day  of ,  1 

The  officer  taking  the  depositions  is  required  to  enclose  in  a  strong  en- 
velope, securely  sealed,  the  Deposition,  Papers  and  Exhibits,  Agreement, 

Notice  and  Certificate  and  direct  the  same  to  the  Clerk  of  the 

Court  of  Iowa,  in  and  for 

county,  noting  on  some  convenient  part  of  the  envelope  the  style  of  the 
cause. 


Depositions  on  part  of.. 


Forward  by  mail  or  express  unless  the  parties  have  agreed  on  some  other 
mode  of  transmission. 

The  depositions  must  be  begun  on  the  day  mentioned  in  the  notice.  If 
they  cannot  be  completed  on  that  day,  the  taking  of  them  may  be  ad- 
journed to  the  succeeding  day,  at  the  same  place,  and  between  the  same 
hours.  The  person  taking  them  should  in  such  case,  make  the  following 
entry  closing  the  business  for  the  day,  viz.: 

Not  being  able  to  complete  the  taking  of  said  deposition,  by  reason  that 
{here  insert  the  reason).  I  adjoi.irn  the  further  taking  of  the  same  until  to- 
morrow, then  to  be  continued  at  the  same  place,  and  between  the  same 
hours,  mentioned  in  the  annexed  notice. 


Form  2438.]  1676  [Chapter  CXXXIII. 

On  the  succeeding  day  let  the  person  taking  the  deposition  commence  as 
follows: 

Purusant  to  the  adjournment  as  above,  on  the day 

of  ,  in  the  year  ,  and 

between  the  hours  of in  the  forenoon,  and 

in  the  afternoon,  at  the I 

continued  the  taking  of  said  depositions  as  follows: 

,  in  continuance  of  his  de- 
position commenced  yesterday,  on  his  oath  further  says,  etc. 

The  deposition  may  be  taken  in  shorthand,  in  which  case  the  certificate 
of  the  person  taking  it,  on  notice  or  agreement,  must  show  that  the  testi- 
mony of  the  witness  was  correctly  taken  down  in  sjiorthand,  and  was  cor- 
rectly extended,  and  that  the  notes  of  his  testimony  or  such  extension 
thereof,  was  read  over  to  the  witness,  and  signed  by  him,  and  sworn  to,  if 
within  the  state,  before  a  person  authorized  to  administer  oath,  and  if 
without  the  state,  before  one  of  the  officers  authorized  to  take  depositions 
outside  the  state,  and  such  extension,  together  with  the  shorthand  notes, 
if  signed  and  sworn  to,  must  be  retjarned  on  the  deposition.  Any  one  tak- 
ing depositions  in  shorthand  shall  first  take  and  subscribe  an  oath  to  take 
down  and  transcribe  correctly  such  testimony,  and  shall  certify  that  his 
translation  thereof  is  full,  true  and  complete. 

Tax  proper  fees  at  end  of  deposition  as  follows:     Commissioner's  fees 

$ Witness  Days 

Miles! 

Above  fees  paid  by  

(Signature  of  Commissioner.) 
The  foregoing  directions  must  be  strictly  observed,  or  the  deposition 

will  be  unavailing. 

If  the  officer  taking  the  deposition  has  a  seal  of  office,  it  must  be  affixed 

to  every  certificate. 

2438.    Agreement  to  take  deposition  (Iowa  Code  Ann. 
1897  sec.  4686). 

[Title.] 

It  is  stipulated  and  agreed  that  the  deposition  of  L 

M . .  . . ,  a  witness  in  the  above  entitled  action  on  the  part  of 
the  plaintiff,  may  be  taken  upon  the  interrogatories  and  cross- 
interrogatories  annexed  hereto  [or  upon  oral  interrogatories] 
before  0.  . .  .  P. . . .,  Esq.,  as  commissioner  [give  official  title] 

of county  of state  of at  his  ofTice  in 

said  city  of on  the  ....  day  of ,  19. .,  said 

deposition  to  be  used  upon  the  trial  of  the  above  entitled 
action  by  the  said  plaintiff. 

Notice  and  copy  of  the  interrogatories  and  the  suing  out  of 
a  commission  are  hereby  waived,  but  said  deposition  to  be 
subject  to  all  just  exceptions  not  herein  waived. 

Dated ,19.. 

E F ,  Plaintiff's  Attorney. 

G. . . .  H Defendant's  Attorney. 


Chapter  CXXXIII.]  1677  [Forms  2439,  2440 

2439.  Caption  for  depositions,  general  form  (Iowa). 

DEPOSITIONS  OF  WITNESSES  produced,  sworn, 

and  examined  at  the  city  of county  of and 

state  of   before  me,  0 . . . .   P .  . , .    [give  official 

title],  in  pursuance  of  the  annexed  notice  [or,  if  taken 
upon  commission,  a  commissioner  duly  appointed  for  that 
purpose  by  the  terms  of  the  annexed  commission,  or 

agreement]  in  a  certain  action  now  pending  in  the 

court  of  the  state  of  Iowa  for county,  wherein 

A . . .  .  B .  .  .  .  is  plaintiff  and  C D . , . .  is  defend- 
ant, on  behalf  of  the  plaintiff. 

L , . .  .  M . . .  .  being  duly  sworn  [or  affirmed],  and  ex- 
amined on  the  part  of  the  plaintiff,  testified  as  follows: 

[Insert  interrogatories  and  answers.] 

Upon  cross-examination  he  testified  as  follows: 
[Insert  cross-interrogatories,  etc.] 

[The  witness  should  sign  at  the  end  of  his  testimony  and  a 
jurat  should  be  added,  signed  by  the  officer.] 

2440.  Certificate  to  depositions. 

[Venue.] 

I,  0 . . . .  P . . . .  [give  official  title]  [if  taken  on  commission 
or  agreement,  add:  a  commissioner  duly  appointed  in  and  by 
the  annexed  commission,  or  agreement],  do  hereby  certify 
that  in  pursuance  of  the  annexed  notice  [or  commission,  or 
agreement,  as  the  fact  may  be],  I  caused  to  come  before  me  at 

on  the  ....  day  of ,  19.  .,  between  the  hours 

of  ....  o'clock  ir)  the  forenoon  and  ....  o'clock  in  the  after- 
noon [names  of  witnesses],  who  were  then  and  there  by  me 
duly  sworn  [or  affirmed]  and  examined,  and  their  testimony 
was  correctly  and  fully  written  down  by  me  [or,  by  Q .  .  . . 
R .  .  .  .  a  disinterested  person,  under  my  direction  and  in  my 
presence]  and  after  being  by  me  read  over  to  said  witnesses, 
the  same  was  subscribed  and  sworn  to  by  them  respectively 
in  my  presence,  and  their  said  depositions  are  now  herewith 
returned.  I  further  certify  that  E . . . .  F . . . .  was  present 
and  conducted  the  examination  on  behalf  of  the  plaintiff, 
and  G . . . .  H , . . .  was  present  and  cross-examined  said  wit- 
nesses for  the  defendant.  [Or  if  taken  on  commission  and  on 
interrogatories:  and   I   further  certify  that  neither  of  the 


Form  2441.]  1678  [Chapter  CXXXIII. 

parties,  nor  the  agent  or  attorney  of  either  of  said  parties  was 
present  during  tlie  taking  of  said  depositions.] 

WITNESS  my  hand  and  ofTicial  seal, 

[SEAL.]  this day  of ,  19 . .,  at 

0....P 

[Official  title.] 


2441.    The  same,  by  stenographer. 

[Venue.] 

I,  0 P [give  official  title],  a  stenographer,  hereby 

certify  that  in  pursuance  of  the  annexed  notice  [or  commis- 
sion] caused  to  come  before  me  at on  the  ....  day 

of ,  19 . .,  between  the  hours  of o'clock  in  the 

forenoon  and o'clock  in  the  afternoon  [names  of  wit- 
nesses] who  were  then  and  there  by  me  duly  sworn  [or 
affirmed]  and  examined,  and  their  examination  was  by  me 
correctly  taken  down  in  shorthand,  and  was  by  me  correctly 
extended  into  long  hand,  and  when  so  extended  was  read  to 
said  witnesses  respectively  in  my  presence,  and  the  same  was 
then  subscribed  and  sworn  to  by  said  witnesses  respectively 
in  my  presence,  and  such  extension  and  said  shorthand  notes 
are  now  herewith  returned  as  the  depositions  of  the  said  wit- 
nesses. I  further  certify  that  before  beginning  the  taking  of 
said  depositions  in  shorthand  I  took  and  subscribed  an  oath 
to  take  down  and  transcribe  correctly  such  testimony,  and 
said  oath  is  hereto  attached.  I  further  certify  that  the 
translation  of  my  said  shorthand  notes  so  taken  is  a  full,  true 
and  complete  translation  thereof. 

I  further  certify  that  E F was  present  and  con- 
ducted the  examination  on  behalf  of  the  plaintiff,  and  G 

H .  .  .  .  was  present  and  cross-examined  said  witnesses  for 
the  defendant  [as  the  case  may  be]. 

WITNESS  my  hand  and  ofTicial  seal 

hereto  annexed  at in  the  county 

[SEAL.]        of state  of this day  of 

,  19.. 

[Signature  of  officer.] 


Chapter  CXXXIII.]  1679  [Forms  2442-2444. 

2442.  Authentication  of  official  character,  if  taken  be- 

fore officer  having  no  seal  (Iowa  Code  Ann.  1897 
sec.  4703). 

[Venue.] 

I,  G. . . .  K. . . .,  clerk  of  the court  in  and  for  said 

county,  hereby  certify  that  0 . . . .  P . . . . ,  before  whom  the 
foregoing  depositions  were  taken,  was  at  the  time  of  taking 
the  same  [give  official  title],  and  duly  qualified  as  such  and 
authorized  to  take  such  depositions,  and  that  his  signature  to 
the  above  certificate  is  genuine. 

GIVEN  under  my  hand  and  the  seal 

of  said  court,  this   ....  day  of , 

[SEAL.]        19.. 

G . . . .  K. . . .,  Glerk,  etc. 

2443.  Notice  by  clerk  of  filing  of  deposition  (Iowa  Code 

Ann.  1897  sec.  4711). 

[Title.] 
[Venue.] 

To   E....   F....,  Esq.,   Plaintiff's  Attorney,   and  G 

H. . . .,  Esq.,  Defendant's  Attorney. 
TAKE  NOTIGE  that  the  depositions  of  [here  insert  names 
of  witnesses],  who  have  been  examined  as  witnesses  on  behalf 
of  plaintiff  in  the  above  entitled  cause  now  pending  in  said 

court,  were  received  by  me  and  filed  in  my  office  at 

in county,  Iowa,  on  the  ....  day  of ,  19 . . 

WITNESS  my  hand  and  seal  of  said 
[SEAL.]        court,  the  day  and  date  above  written. 

G. . . .  K. . . .,  Glerk,  etc. 

2444.  Notice  to  take  deposition  (Nebraska). 

....  Judicial  District  of  Nebraska 
District  Gourt, Gounty, 

A....  B...., 

Plaintiff, 
vs. 

C...  D...., 

Defendant. 


Form  2444.]  1680  [Chapter  CXXXIII. 

[Venue.] 

To  C . . . .  D ,  the  above  named  defendant,  and  G . . . . 

H . . . . ,  his  attorney. 

TAKE  NOTICE  that  on  the day  of ,19. .,  the 

plaintiff  will  take  the  depositions  of  [name  witnesses]  to  be 
used  as  evidence  on  the  trial  of  the  above  entitled  cause,  be- 
fore 0 P ,  Esq.,  [give  official  title]  at county 

of and  state  of at o'clock  . .  M.  of  that 

day,  with  authority  to  adjourn  from  day  to  day  until  such 
depositions  shall  all  have  been  taken. 

[Date.]  E....  F...., 

Plaintiff's  Attorney. 

[The  following  instructions  to  the  officer  accompany  the  notice]: 

BEGIN   WITH  THE   FOLLOWING   CAPTION: 

Depositions  of  sundry  witnesses  taken  before  me  (here  insert  the  name  of 
the  Magistrate  and  his  official  character  as  a   Justice  of  the  Peace  or  Notary 

Public,    etc.),     within    and    for    the    County    of   , 

in  the  State  of ,  on  the day  of , 

in  the  year ,  between  the  hours  of A.  M. 

and  P.  M.  at ,  in  said  county,  pursuant  to  the 

annexed  notice  (or  agreement  as  the  case  may  be)  to  be  read  in  evidence  in 
behalf  of  the  (plaintiff  or  defendant  as  the  case  may  be)  in  an  action  pend- 
ing in (naming  the  court)  in  which 

plaintiff  and defendant. 

"A.  B.,  of  lawful  age,  being  by  me  first  duly  examined,  cautioned,  and 
solemnly  sworn  (or  affirmed),  as  hereinafter  certified,  deposeth  and  sayeth 
as  follows,  viz."  (here  write  the  deposition)  and  so  on  with  all  the  witnesses. 

The  deposition  may  be  taken  by  stating  the  facts  in  reply  to  questions 
first  written  dov/n,  or  in  a  narrative  form. 

In  Nebraska  they  may  be  taken  before  a  Judge  or  Clerk  of  the  Supreme 
or  District  Court,  Probate  Judge,  or  before  a  Justice  of  the  Peace,  Notary 
Public,  Mayor,  or  Chief  Magistrate  of  any  City  or  Town  corporate.  Master 
Commissioner,  or  person  empowered  by  special  commission;  out  of  Neb- 
raska, by  a  Judge,  Justice,  or  Chancellor  of  any  Court  of  Record,  a  Justice 
of  the  Peace,  Notary  Public,  Mayor,  or  Chief  Magistrate  of  any  City  or 
Town  corporate.  Commissioner  appointed  by  the  Governor  of  Nebraska 
to  take  depositions,  or  any  person  authorized  by  special  commission. 

If  there  are  adjournments  they  should  be  noted  by  the  Magistrate  or 
other  officer  taking  the  depositions,  from  day  to  day,  at  the  close  of  the 
day  with  the  reasons  therefor. 

Objections  should  be  entered  to  questions  supposed  to  be  illegal.  This 
entry  is  made  on  behalf  of  the  party  raising  the  objections,  simply  by  a 
short  note  made  by  the  Magistrate  or  officer  taking  the  depositions. 

Each  witness  must  sign  his  own  deposition. 

The  notice  must  be  attached  to  the  depositions  and  enclosed  with  them. 

The  depositions  must  be  commenced  on  the  day  named,  and  some  por- 
tion of  a  deposition  taken  on  each  successive  day,  Sundays  excepted,  ad- 
journments being  from  Saturday  to  Monday,  Sundays  and  national  hol- 
idays not  being  regarded. 


Chapter  CXXXIIL]  1681  [Form  2445. 

When  depositions  are  taken  under  an  agreement,  the  above  instructions 
will  be  followed  except  where  they  are  modified  by  the  agreement.  In 
such  case  the  agreement  will  be  followed.  It  should  be  attached  to  depo- 
sition, if  sent,  and  referred  to  in  the  caption,  as  the  notice  is  when  taken 
under  notice. 

If  taken  by  interrogatories  and  cross-interrogatories,  under  agreement 
or  otherwise,  every  interrogatory  and  cross-interrogatory  must  be  put  to 
each  witness  and  answered  as  far  as  he  can  answer  it,  and  the  answer  be 
written  down.  The  deposition  must  show  that  each  interrogatory  was 
thus  put  and  answered. 

The  fees  for  taking  the  depositions  should  be  taxed,  and  a  memorandum 
made  by  whom  they  were  paid.  Close  the  depositions  with  a  certificate  in 
the  form  following,  viz.: 

"STATE  OF I 

COUNTY  OF j^- 

I,  A.  B.  (naming  the  official  character  of  the  magistrate  according  to  the 
fact),  do  hereby  certify  that  (naming  all  the  witnesses  who  have  testified) 
were  by  me  first  severally  duly  sworn  (or  affirmed)  to  testify  the  truth,  the 
whole  truth  and  nothing  but  the  truth,  and  that  the  depositions  by  them 
respectively  subscribed  as  above  set  forth,  were  reduced  to  writing  by  my- 
self {or  if  by  any  other  person  name  him  and  say  by ,  who  is 

not  interested  in  the  suit,  in  my  presence  and)  in  the  presence  of  the  wit- 
nesses respectively,  and  were  respectively  subscribed  by  the  said  witnesses 
in  my  presence  and  were  taken  at  the  time  and  place  in  the  an- 
nexed notice  (or  agreement)  specified;  that  I  am  not  counsel,  attorney,  or 
relative  of  either  party,  or  otherwise  interested  in  the  event  of  this  suit; 
{if  there  be  adjournments,  add)  and  said  depositions  were  commenced  at 
the  time  in  said  notice  specified,  and  continued  by  adjournment  from  day 
to  day,  as  above  stated. 

(Signed.)  In  testimony  whereof,  etc.,  A B " 

Depositions  taken  before  any  authorized  officer  having  an  official  seal 
must  be  certified  by  him  under  such  seal  and  his  official  signature.  If  the 
officer  have  no  official  seal,  the  deposition  {if  not  taken  in  this  state) 
must  be  certified  and  signed  by  such  officer,  and  further  authenticated  by 
parol  proof  adduced  in  court,  or  by  the  official  certificate  and  seal  of  any 
Secretary  or  other  officer  of  State  keeping  the  great  seal  thereof,  or  of  the 
clerk  or  prothonotary  of  any  court  having  a  seal,  attesting  that  such 
judicial  or  other  officer  was,  at  the  time  of  taking  the  same,  authorized  to  do 
so  {as  being  one  of  the  officers  above  mentioned).  This  certificate  should 
be  attached  to  the  certificate  of  the  officer  taking  the  deposition. 

This  proof  of  official  character  is  omitted  when  waived  by  agreement  of 
parties  by  endorsement  on  notice;  but  this  agreement  does  not  waive  the 
taking  at  the  special  time  and  place. 

The  whole  should  be  sealed  up  by  the  officer  taking  the  same,  and  the 
envelope  addressed  to  the  Clerk  of  the  Court  in  which  the  action  is  pend- 
ing, and  endorsed  as  follows: 

"A B against  C D {giving  the  title  of  the  cause).     Depositions 

in  said  action  on  behalf  of  the  (plaintiff  or  defendant  as  the 

case  may  be).  These  depositions  taken,  sealed  up,  endorsed,  addressed, 
and  transmitted  by  me. 

L M Notary  Public." 

2445.    Commission  and  return  (Nebraska). 

THE  STATE  OF  NEBRASKA, 

County. 

106 


Form  2446.]  1682  [Chapter  CXXXIII. 

ToL....  M.... 

KNOW  YOU,  That  you  have  been  appointed  by  the  .... 

court  of county,  Nebraska,  and  are  hereby  vested 

with  full  power  and  authority  to  examine,  under  oath,  on  the 
interrogatories  hereto  attached,  E. . . .  F. . . .,  and  G.  . .  .- 
H . . . . ,  and  that,  having  reduced  such  examination  to  writ- 
ing, and  caused  the  same  to  be  subscribed  by  the  witnesses 
you  do  return  the  same,  closed  up,  together  with  this  writ, 
to  this  court,  with  all  possible  dispatch,  to  be  used  on  the 
trial  of  a  cause  now  pending  in  said  court,  wherein  A . . . . 
B . . . .  is  plaintiff,  and  C . . . .  D . . . .  is  defendant. 

WITNESS  my  hand  and  the  seal 

of  said  Court,  this day  of 

[SEAL.]  A.  D.  19.. 

L....M 

Clerk. 

Return  of  commission. 

According  to  the  command  of    the  within  writ  I    caused 
the  said  E . . . .  F . . . .  and  G . . . .  H . . . .  to  come  before  me 

on  the day  of ,  19 . .,  at in  the  county  of 

and  state  of and  having  first  duly  sworn  the 

said  E. . . .  F and  G H to  testify  the  truth,  the 

whole  truth,  and  nothing  but  the  truth,  proceeded  to 
examine  them  on  the  interrogatories  attached  to  said  writ, 
and  reduced  their  answers  thereto  to  writing,  and  caused  the 
said  witnesses  to  subscribe  the  same  in  my  presence;  which 
examinations,  so  taken,  reduced  to  writing,  and  subscribed 
are  herewith  returned. 

L....  M...., 

[Ojfficial  Title.] 

2446.    Caption  and  certificate  to  depositions  taken  on 
notice  or  agreement  (Nebraska). 

DEPOSITIONS  of  sundry  witnesses  taken  before  me 
[give  name  and  official  title]  within  and  for  the  county 

of in  the  state  of on  the day  of 

in  the  year  19 . .  between  the  hours  of A.  M.  and 

P.  M.,  at in  said  county,  pursuant  to  the  an- 
nexed notice  [or  agreement,  as  the  case  may  be]  to  be  read 
in  evidence  in  behalf  of  the  plaintiff,  in  an  action  pending 


Chapter  CXXXIII.]  1683  [Form  2447. 

in  the court,  in  which  A. B . . . .  is  plaintiff 

and  G. . . .  D . . . .  is  defendant. 

L M. . . .,  of  lawful  age,  being  by  me  first  duly 

examined,  cautioned  and  solemnly  sworn  [or  affirmed], 

testifies  as  follows : 
[Here  follow  questions  and  answers.\ 

[Adjournment  should  be  noted,  with  reasons,  and  each  wit" 
ness  must  sign  his  own  deposition.] 
[Venue.] 

I,  0 ... .  P [here  official  title]  hereby  certify  that  [name 

witnesses]  were  by  me  first  severally  duly  sworn  [or  affirmed] 
to  testify  the  truth,  the  whole  truth,  and  nothing  but  the 
truth,  and  that  the  depositions  by  them  respectively  sub- 
scribed as  above  set  forth,  were  reduced  to  writmg  by  my- 
self [or  if  by  any  other  person  name  him,  and  say:  by  J ... . 
R . . . .,  who  is  not  interested  in  the  suit,  in  my  presence,  and] 
in  the  presence  of  the  witnesses  respectively,  and  were  re- 
spectively subscribed  by  the  said  witnesses  in  my  presence, 
and  were  taken  at  the  time  and  place  in  the  annexed  notice 
[or  agreement]  specified;  that  I  am  not  counsel,  attorney,  or 
relative  of  either  party,  or  otherwise  interested  in  the  event 
of  this  suit  [if  there  be  adjournments  add],  and  said  depositions 
were  commenced  at  the  time  in  said  notice  specified,  and 
continued  by  adjournments  from  day  to  day,  as  above  stated. 

WITNESS  my  hand  and  official 

[SEAL.]  seal,  this  ....  day  of ,  19 . . 

[Signature.] 

Endorsement  on  envelope. 
[Title  of  case.] 

DEPOSITIONS  in  said  action  on  behalf  of  the  plain- 
tiff. 

These  depositions  taken,  sealed  up,    indorsed,    ad- 
dressed, and  transmitted  by  me. 

[Official  signature.] 

2447.    Depositions  (North  Dakota  and  South  Dakota). 

With  some  slight  changes,  the  forms  given  for  use  in  Wiscon- 
sin and  Minnesota  may  be  used  in  North  and  South  Dakota.] 


Form  2448.]  1684  [Chapter  CXXXIII. 

2448.    Certificate  of  officer  (South  Dakota). 
STATE  OF  SOUTH  DAKOTA, 


County  of 

BE  IT  KNOWN,  That  I  took  the  annexed  deposition  of 
E....  F....  and  G....  H....  pursuant  to  the  annexed 
stipulation  [commission  or  notice] ;  that  I  was  then  and  there 
a  [name  office]  in  and  for  said  county  and  state;  that  I 
exercised  the  power  of  that  office  in  taking  such  deposition; 
that  by  virtue  thereof  I  was  then  and  there  authorized  to 
administer  an  oath ;  that  I  am  not  an  attorney  or  relative 
of  either  party  or  otherwise  interested  in  the  event  of  the 
within  action;  that  each  witness,  before  testifying,  was  duly 
sworn  to  testify  the  truth,  the  whole  truth,  and  nothing  but 
the  truth  relative  to  the  cause  specified  in  the  annexed  stip- 
ulation [commission  or  notice];  that  the  deposition  of  each 
witness  was  reduced  to  writing  by  me  [or  by  J ... .  K .  .  . . ,  a 
disinterested  and  proper  person] ;  that  the  deposition  of  each 
witness  was  written  and  subscribed  in  my  presence  and  in  the 
presence  of  the  witness;  that  said  deposition  was  taken  at 

....  on  the  ....  day  of ,  19 .  . ,  at  . . . .  o'clock  . .  M. ; 

that  the  examination  was  conducted  on  behalf  of  the  plaintiff 
by  R. . . .  S . . . . ;  that  the  examination  was  con- 
ducted on  behalf  of  the  defendant  by  N 0 . . . . 

WITNESS  my  hand  and  seal  this day  of  

19.. 

[SEAL.]  L....  ]VI...., 

[OJficial  Title.] 

[The  following  instructions  are  sent  to  the  officer  taking  a 
deposition  to  be  used  in  South  Dadota.] 

INSTRUCTIONS  FOR  TAKING  DEPOSITION. 

These  instructions  should  be  carefully  read  and  strictly  followed,  or  the 
deposition  may  prove  entirely  worthless. 

Begin  with  the  following  caption: 

"Deposition  of  sundry  witnesses  [or  if  but  one  witness,  say  deposition 

of naming  him]  taken  before  me  [here  insert  the  name 

of  the  ojjicer   and  his   official   character  as  Justice  of  Peace  or   Notary 

Public,    etc.]  within  and   for  the  county  of  in  the 

State  [or  Territory  as  the  case  may  be]  pursuant  to  the  annexed  notice 
and  at  the  time  and  place  mentioned  therein,  [or  agreement  as  the  case 
may  be]  to  be  read  in  evidence  in  behalf  of  the  [plaintiff  or  defendant  as 

the  case  may  be]  in  an  action  pending  in  [naming  the 

court]  in  which plaintiff  and  defendant." 


Chapter  CXXXIII.]  1685  [Form  2448. 

If  the  parties  or  either  of  them  appear,  an  entry  thereof  should  be  here 
inserted  according  to  the  fact: 

The  phiintiff apearing  [in  person  or  by  

his  or  their  attorney  or  attorneys.]  The  defendant ap- 
pearing [in  person  or  by  his  or  their  attorney  or  at- 
torneys.] 

If  there  is  no  appearance  either  in  person  or  by  attorney  omit  any  en- 
try in  regard  to  it. 

A B ,  of  lawful  age,  being  by  me  first  duly  and  solemnly  sworn, 

as  hereinafter  certified  [or  afTirmedj  deposeth  and  sayeth  as  follows,  viz.: 
[here  write  the  deposition]  and  so  on  with  all  the  witnesses. 

The  deposition  may  be  taken  by  stating  the  facts  in  reply  to  questions 
first  written  down  or  in  a  narrative  form. 

In  South  Dakota  they  may  be  taken  before  a  Judge  or  Clerk  of  the 
Supreme  or  Circuit  Court  or  before  a  Justice  of  the  Peace,  Notary  Public, 
or  any  person  empowered  by  special  commission;  out  of  this  State  by  a 
Judge,  Justice,  Chancellor  or  Clerk  of  any  Court  of  Record,  a  Justice  of 
the  Peace,  Notary  Public,  Mayor  or  Chief  Magistrate  of  any  City,  or 
town  corporate.  Commissioner  appointed  by  the  Governor  of  South  Da- 
kota to  take  depositions,  or  any  person  authorized  by  special  commission. 

The  officer  before  whom  depositions  are  taken,  must  not  be  a  relative  or 
attorney  of  either  party  or  otherwise  interested  in  the  event  of  the  action 
or  proceeding. 

If  there  are  adjournments  they  should  be  from  day  to  day,  and  noted  by 
the  Magistrate  or  other  officer  taking  the  depositions,  at  the  close  of  the 
day,  with  the  reasons  therefor. 

OBJECTIONS- — If  the  party  against  whom  the  depositions  to  be  read 
appears,  he  may  make  objections  to  questions  supposed  to  be  illegal. 
This  entry  is  made  on  behalf  of  the  party  raising  the  objection  by  the 
Magistrate  or  officer  taking  the  deposition. 

Each  witness  must  sign  his  own  deposition. 

The  notice  must  be  attached  to  the  depositions  and  enclosed  with  them. 

The  depositions  must  be  commenced  on  the  day  named,  and  if  not  com- 
pleted adjournments  may  be  taken  from  day  to  day,  Sundays  excepted, 
adjournments  being  from  Saturday  to  Monday,  Sundays  and  National 
holidays  not  being  regarded. 

The  deposition  must  be  written  by  the  officer,  or  in  his  presence  by  the 
witness  or  some  disinterested  person. 

When  depositions  are  taken  under  an  agreement,  the  above  instructions 
will  be  followed,  except  where  they  are  made  by  the  agreement.  In  such 
case  the  agreement  will  be  followed.  It  should  be  attached  to  the  depo- 
sition, if  sent,  and  referred  to  in  the  caption,  as  the  notice  is  when  taken 
under  a  notice. 

If  taken  by  interrogatories  and  cross-interrogatories  under  agreement 
or  otherwise,  every  interrogatory  or  cross-interrogatory  must  be  put  to 
each  witness,  and  answered  as  far  as  he  can  answer  it  and  the  answer  be 
written  down.  The  deposition  must  show  that  each  interrogatory  and 
cross-interrogatory  was  thus  put  and  answered. 

The  fees  for  taking  the  deposition  should  be  taxed,  and  a  memorandum 
made  by  whom  they  were  paid.  Close  the  deposition  with  a  certificate  in 
the  form  following,  viz.: 

"I,  A B ,  [naming  the  ojjicial  character  of  the   officer  according 

to  the  fact\  do  hereby  certify  that  I  am  not  an  attorney  or  relative  of  either 
party  or  otherwise  interested  in  the  event  of  the  within  action,  that  [nam- 
ing all  the  witnesses  who  have  testified]  were  by  me  first  [severally]  duly 


Form  2449.]  1686  [Chapter  CXXXIII. 

Sworn  [or  affirmed]  to  testify  the  truth,  the  whole  truth  and  nothing  but  the 
truth,  and  that  the  deposition,  [by  them  respectively,  or  him  as  the  case 
may  be]  subscribed  as  above  sst  forth,  were  reduced  to  writing  by  myself, 

lor  if  by  any  other  person,  name  him  and  say  by ]  who 

is  not  interested  in  the  suit,  in  my  presence,  [and  in  the  presence  of  the 
witness  or]  witnesses  respectively,  [as  the  case  may  be]  and  were  [re- 
spectively] subscribed  by  the  said  witness — in  my  presence,  and  were 
taken  at  the  time  and  place  in  the  annexed  notice  [or  agreement]  specified; 
if  there  be  adjournments,  add,  [and  said  depositions  were  commenced  at 
the  time  in  said  notice  specified,  and  continued  by  adjournment  from  day 
to  day  as  above  stated.] 

[Signed]  A B [with  name  of  office.]" 

Depositions  taken  by  any  judicial  or  other  officer  herein  authorized  to 

take  depositions,  having  a  seal  of  office,  whether  resident  of  this 

or  elsewhere,  shall  be  admitted  in  evidence  upon  the  certificate  and  sig- 
nature of  such  officer,  under  the  seal  of  the  Court  of  which  he  is  an  officer,  or 
his  official  seal,  and  no  further  act  or  authentication  shall  be  required.  If 
the  ofTicer  taking  the  same  have  no  official  seal,  the  deposition  if  not  taken 
in  this  state,  shall  be  certified  and  signed  by  such  officer,  and  shall  be 
further  authenticated  by  the  official  certificate  and  seal  of  any  Secretary  or 
other  officer  of  State  keeping  the  great  seal  thereof;  or  of  the  clerk  or 
prothonotary  of  any  court  having  a  seal,  attesting  that  such  judicial  or 
other  officer  was  at  the  time  of  taking  the  same,  authorized  to  take  the 
same. 

This  certificate  should  be  attached  to  the  certificate  of  the  officer  taking 
the  deposition. 

The  deposition  so  taken  shall  be  sealed  up  and  endorsed  with  the  title 
of  the  cause  [the  same  time  is  given  in  the  notice  to  take  the  depositions] 
and  the  name  of  the  oflicer  taking  the  same,  and  by  him  addressed  and 
transmitted  to  the  Clerk  of  the  Circuit  where  the  action  of  proceeding  is 
pending. 

2449.    Affidavit  for  examination  of  witness  (Cal.  C.  C.  P. 
1906  sees.  2024-2031). 

[Title.] 
[Venue.] 

A . . . .  B . . . . ,  being  first  duly  sworn  says  that  he  is  the 
plaintiff  in  the  above  entitled  action  in  which  a  summons  has 
been  served.  That  one  E . . . .  F . . . .  is  a  necessary  and  ma- 
terial witness  for  affiant  on  the  trial  of  this  action  without 
whose  testimony  affiant  cannot  safely  proceed  to  trial  there- 
of, and  that  said  E. ...  F. ...  is  about  to  leave  said  county  of 

where  said  action  is  pending  and  will  be  tried  to  be 

absent  for  a  year  [or  otherwise  state  the  time]  and  long  past  the 

time  when  said  action  will  be  tried  [or  otherwise  state  the 

facts  showing  that  the  case  is  within  Cal.  C.  C.  P.  1906,  sec.  202]. 

Affiant  further  states  that  he  is  informed  and  beheves  that 

said  E. . . .  F. . . .  intends  to  leave  said  county  on  

19. .,  and  that  affiant  was  not  aware  of  his  intended  depar- 


Chapter  CXXXIIL]  1687  [Forms  2450-2452. 

ture  in  time  to  give  five  days'  notice  of  the  time  and  place  of 
taking  his  deposition.    That  the  defendant's   attorneys  are 

Messrs who  reside  at 

[Jurat.] 

A B 

2450.  Notice  of  taking  deposition  (California). 

[Title.] 

To  C . . . .  D . . . . ,  defendant  and  to  his  attorneys. 

TAKE  NOTICE,  That  the  deposition  of  E F 

to  be  used  in  the  trial  of  this  action  on  behalf  of  the  plaintiff 
will  be  taken  before  L. . . .  M. . . .,  Esq.,  a  [official  title]  at 

his  office  in  the  city  of  ....  county  of at  the  hour  of 

....  o'clock ,  19. .,  and  if  not  completed  on  that  day 

the^taking  will  be  continued  from  day  to  day  thereafter  until 
completed. 

You  will  further  take  notice  that  the  annexed  is  a  copy  of 
an  affidavit  made  by  the  plaintiff  above  named  upon  which 
the  order  at  the  foot  hereof  is  based. 

[Dated.] 

L....M 

Attorney  for  Plaintiff. 

2451.  Order  shortening  time  of  notice. 

[Title.] 

It  appearing  to  me  that  good  cause  exists  therefor,  it  is 
hereby  ordered  that  the  time  of  giving  the  foregoing  notice 
be  and  is  hereby  shortened  to  one  day. 

[Dated.]  J....  K...., 

Judge. 

2452.  Affidavit  for  issuance  of  commission  for  witness 

in  another  state  (California). 

[Title.] 
[Venue.] 

A . . . .  B . . . .  being  duly  sworn  says  that  he  is  the  plaintiff 
in  this  action  and  that  E. . . .  F.  . . .  of is  a  neces- 
sary and  material  witness  for  the  plaintiff  in  this  action  with- 
out whose  testimony  he  cannot  safely  proceed  to  trial,  that 


Forms  2453,  2454.]  1688  [Chapter  CXXXIII. 

said  witness  resides  in and  is  now  outside  of  this  state 

and  will  continue  absent  from  the  state  when  his  testimony 
is  required  in  this  action. 

A....  B 

[Jurat] 

2453.  Notice  of  motion  for  commission  (California). 

[Title.] 

To  C D defendant  and  to defendant's  at- 
torneys. 

TAKE  NOTICE,  That  upon  the  annexed  affidavit  and 
upon  the  pleadings  in  this  action  served  and  filed  the  under- 
signed will  move  the  above  named  court  at on , 

19. .,  at  the  opening  of  court  on  that  day  or  as  soon  there- 
after as  counsel  can  be  heard,  that  a  commission  issue  out 
of  and  under  the  seal  of  this  court  to  take  the  testimony  of 

E . . . .  F . . . .  a  witness  residing  out  of  this  state  at ; 

said  commission  to  be  directed  to  some  proper  person  re- 
siding at  the  city  of in  the  state  of  .......  to  be  ap- 
pointed by  the  judge  of  this  court. 

[Dated.]  L. . . .  M 

Plaintiff's  Attorney. 

2454.  Notice  of  taking  deposition  of  resident  witness 

(Colorado). 

[Title.] 

To  the  above  named  C . . . .  D . . . .  defendant  and  to  G. . . . 
H . . . . ,  his  attorney. 

TAKE  NOTICE,  That  the  deposition  of  E F , 

will  be  taken  before  N 0....,  a  [name  office],  at  his 

office  at on  the  ....  day  of 19.  .,  commenc- 
ing at  the  hour  of  ....  o'clock  in  the  ....  noon  of  said  day, 
to  be  read  in  evidence  on  the  trial  of  the  above  entitled 
cause,  on  the  part  of  the  plaintiff  at  which  time  and  place  of 
examination  above  mentioned  for  the  taking  of  such  depo- 
sition you  can  appear,  and  cross-examine  the  said  witness. 

Dated  this day  of 19 . . 

L....   M...., 
Attorney  for  Plaintiff. 


Chapter  CXXXIIL]  1689  [Forms  2455,  2456. 

2455.    Affidavit  accompanying  above  notice. 

[Title.] 
[Venue.] 

A. . . .  B . . . .  being  first  duly  sworn,  makes  oath  and  says 
that  he  is  the  plaintiff  in  the  above  entitled  action,  that  E . . , . 
F . . . . ,  who  is  a  material  witness  for  the  plaintiff  in  this  ac- 
tion is  about  to  leave  the  county  when  this  action  is 
to  be  tried  and  will  probably  be  absent  when  his  testimony 
is  required.  That  affiant  desires  the  deposition  of  said  wit- 
ness to  be  read  in  evidence  on  the  trial  of  said  cause. 

A....  B.... 
[Jurat] 


2456.    Notice  and  interrogatories  for  issuance  of  com- 
mission for  nonresident  witness  (Colorado). 

[Title.] 
TAKE  NOTICE,  That  on  the day  of ,  19. ., 

the  plaintiff  above  named  will  sue  out  from  the  clerk's  office 
of  the  said  court  a  commission,  to  take  the  deposition  of 

E....  F....,a  witness  residing  in  the of in 

the  county  of ,  in  the  state  of to  be  read  in 

evidence  on  the  part  of  the  plaintiff  upon  the  trial  of  the 
above  entitled  action.    The  said  commission  to  be  directed 

to  0 ...  ,  P . .  . .,  Esq.,  of  the The  interrogatories  to 

be  propounded  to  the  said  E . . . .  F ,  .  . .  on  behalf  of  the 
plaintiff  are  hereunto  subjoined  and  you  can  file  cross  in- 
terrogatories and  join  in  such  commission,  if  you  see  fit. 

[Date.] 

L....  M...., 
Attorney  for  Plaintiff. 
[Title.] 

INTERROGATORIES    to    be    propounded    to    E 

F . . . . ,  a  witness  to  be  produced,  sworn  and  examined  on  this 
behalf  on  the  part  of  the  plaintiff  above  named  by  virtue  of 
the  commission  or  dedimus  potestatem  to  be  issued  herein: 

Int.  1.  What  is  your  name,  age,  occupation  and  place  of 
residence? 

Int.  2.  Do  you  know  the  parties,  plaintiff  and  defend- 
ant in  this  cause,  or  either  of  them?  If  yea,  how  long  have 
you  know  them,  and  each  of  them,  respectively? 


Form  2457.]  1690  [Chapter  CXXXIII. 

Int.     3.     [Insert  third  question  and  so  continue]. 
[Repeat  the  introductory  paragraph  for  each  witness.] 

2457.    Commission  to  take  testimony  upon  interroga- 
tories (Colorado). 

[Venue.] 

THE  PEOPLE  of  the  State  of  Colorado  to  [name  commis- 
sion]. 
WHEREAS  it  appears  that  E F of is  a 

material  witness  in  an  action  pending  in  our court 

for  the  county  of wherein  A . . . .   B . .  . .   is   plaintiff 

and  C D is  defendant,  and  that  said  E . . . .  F 

resides  at ,  without  the  state  of  Colorado,  and  that  his 

personal  attendance  can  not  be  had  at  the  trial  of  this  cause; 
now, 

KNOW  YE,  That  we,  having  full  faith  and  confidence  in 
your  prudence  and  fidelity,  have  appointed  you  commissioner 
to  examine  the  said  witness,  and  we  do  authorize  and  em- 
power you,  at  a  time  and  place  to  be  fixed  by  you,  diligently 
to  examine  the  said  witness  on  the  interrogatories  and  cross- 
interrogatories  attached  hereto,  on  his  corporal  oath  first 
taken  before  you,  and  cause  the  said  examination  of  such  wit- 
ness to  be  reduced  to  writing  and  signed  by  said  witness  and 
by  yourself,  and  then  return  the  same,  annexed  to  said  com- 
mission, unto  our  said  court  with  all  convenient  speed. 

WITNESS  the  Hon.  J. . .  .  K. . . . 
Judge  of  the  ....  court  aforesaid  and 

[SEAL.]  the  seal  of  said  court  this day 

of 19.. 

R....  S 

Clerk. 

Instructions  sent  with  the  foregoing  commission. 

CAPTION  OF  THE  DEPOSITION. 

"The  deposition  of  of  the  County  of and 

State  (or  Territory)  of  a  witness  of  lawful  age,  produced, 

sworn  and  examined,  upon  his  corporal  oath,  on  the day  of 

in  the  year  of  our  Lord,  one  thousand  nine  hundred  and 

at  the  office  (or  house)  of  in  the  town  (or 

city)  of in  the  County  of and  State  (or Ter- 
ritory) aforesaid,  by  me  a  Commissioner  (or  by  "us,"  if 

more  than  one  Commissioner,  inserting  all  the  names  of  the  Commission- 
ers), duly  appointed  by  a  Dedimus  Potestatum  or  Commission,  issued  out 


Chapter  CXXXIII.]  1691  [Form  2457. 

of  the  Clerk's  Office  of  the Court  of County, 

in  the  State  of  Colorado,  bearing  Teste  in  the  name  of  

Esq.,  Clerk  of  the  said Court,  with  the  seal  of  the  said  Court 

affixed  thereto,  and  to  me  (or  "us,"  if  more  than  one)  directed  as  such  Com- 
missioner (or  "Commissioners")  for  the  examination  of  the  said 

a  witness  in  a  certain  suit  and  matter  in  controversy  now  pending  and  un- 
determined in  the  said  Court,  wherein  „ is 

plaintiff,  and is  defendant,  in  behalf  of  the  said 

as  well  upon  the  cross  interrogatories  of  the  as  on  the  in- 
terrogatories of  the which  were  attached  to  or  inclosed  with 

the  said  Commission,  and  upon  none  others.  The  said be- 
ing first  duly  sworn  by  me  (or  "by  one  of  said  Commis- 
sioners," if  more  than  one)  as  a  witness  in  the  said  cause,  previous  to  the 
commencement  of  his  examination,  to  testify  the  truth,  the  whole  truth, 
and  nothing  but  the  truth,  in  relation  to  the  matters  in  controversy  be- 
tween the  said  plaintiff  and  defendant,  testified  and  deposed  as  follows: 

"Interrogatory  First."    {Here  insert  first  interrogatory.) 

"Answer  to  first  interrogatory."  (Here  insert  the  answer),  and  so  on 
successively  in  the  order  in  which  the  interrogatories  may  be  propounded 
and  answered.  Then  follow  "cross  interrogatories  and  answers  thereto,  by 
the  witness,  on  the  part  of  the  defendant"  (or  plaintiff,  as  the  case  may 
be).  {Here  again  write  down  the  interrogatories  and  answers  successively  in 
the  order  aforesaid.) 

After  the  deposition  is  taken,  the  interrogatories  and  answers  should  be 
read  over  to  the  witness,  and  if  he  assents  to  the  truth  of  the  answers  as 
written  down,  the  witness  will  then  sign  his  name  at  the  bottom  of  the 
deposition,  and  swear  to  the  truth  of  it  before  the  Commissioner  (or  one  of 
the  Commissioners,  if  more  than  one).  This  oath  is  in  addition  to  the  pre- 
liminary oath  which  is  administered  previous  to  the  commencement  of  his 
examination. 

The  Commissioner  should  then  certify  as  to  the  time,  place,  and  man- 
ner of  taking  the  deposition,  as  follows: 

I,  of  the  County  of  and  State  (or  Ter- 
ritory) of a  Commissioner  duly  appointed  to  take  the  depo- 
sition of  the  said a  witness  whose  name  is  subscribed  to  the 

foregoing  deposition,  do  hereby  certify  that  pre\ious  to  the  commence- 
ment of  the  examination  of  the  said as  a  witness  in  the  said 

suit  between  the  said  plaintiff,  and  the  said 

defendant,  he  was  duly  sworn  by  me  (or  " one  of  said  Com- 
missioners," if  more  than  one),  to  testify  the  truth,  the  whole  truth  and 
nothing  but  the  truth  in  relation  to  the  matters  in  controversy  between  the 

said  plaintiff,  and  the  said  defendant;  that 

the  said  deposition  was  taken  in  my  office  (or  "at  the  house  of **) 

in  the  city  (or  town)  of in  the  County  of and 

State  (or  Territory)  of on  the day  of 

A.  D.,  19 ;  and  that  after  said  deposition  was  taken  by  me  (or  "us") 

as  aforesaid,  the  interrogatories  and  answers  thereto,  as  written  down,  were 
read  over  to  the  said  witness;  and  that  thereupon  the  same  was  signed  and 

sworn  to  by  the  said  deponent  before  me   (or   "us"),   the 

oath  being  administered  by  one  of  said  Commissioners 

(where  there  is  more  than  one  such  Commissioner),  at  the  place  and  on 
the  day  and  year  last  aforesaid. 

(Signed)   Commissioner. 

(The  foregoing  certificate  of  Commissioner  should  be  at  the  foot  or 
bottom  of  the  deposition,  immediately  following  the  signature  of  the  wit- 
ness.) 


Form  2458.]  1692  [Chapter  CXXXIII. 

The  Commissioner  should  then  fold  up  the  deposition  as  thus  taken  and 
certified,  together  with  the  commission  and  interrogatories,  and  all  exhibits 
(if  any)  produced  on  the  examination,  properly  marked  or  lettered,  as  "Ex- 
hibit A  "  "Exhibit  B,"  etc.,  and  enclose  the  whole  in  a  suitable  wrapper  or 
envelope,  then  seal  up  the  same  securely  with  three  seals,  writing  his  name 
transversely  across  the  middle  seal;  or,  if  two  Commissioners,  they  will 
each  write  their  names,  one  on  each  of  the  outside  seals;  or,  if  three  Com- 
missioners, then  each  one  will  write  his  name  across  one  of  the  seals  in  the 
manner  aforesaid.  The  Commissioner  (or  Commissioners)  will  also  en- 
dorse the  names  of  the  parties  to  the  suit,  transversely  across  one  end  of 
the  package  thus  sealed  up,  according  to  the  proper  title  of  the  suit,  and 
direct  the  same  to  the  proper  address  of  the  Clerk,  who  may  issue  the  Com- 
mission, and  transmit  the  same  by  mail  to  the  proper  Post  office.  Neither 
of  the  parties  to  the  suit,  or  their  attorneys  or  agents,  or  any  person  at 
all  interested  in  the  event  of  the  suit,  are  permitted  by  law  to  dictate, 
write  or  draw  up  any  part  of  the  deposition  required  to  be  taken  as  afore- 
said. 

N.  B. — It  is  important  to  the  validity  of  the  deposition,  that  these  re- 
quirements and  instruction  should  be  strictly  attended  to. 

P.  S. — One  caption  will  answer  for  the  deposition  of  several  witnesses, 
where  they  are  all  taken  at  the  same  time  and  place,  to  be  read  as  evidence 
in  the  same  suit,  by  so  modifying  the  form  here  given,  as  to  be  applicable 
to  the  number  of  witnesses  examined — as,  for  instance,  at  the  commence- 
ment say: 

"The  depositions  of  A.  B.,  C.  D.,  and  E.  P.,  of  the  County  of 

and  State  of witnesses  of  lawful  age,  produced,  sworn  and 

examined  on  their  respective  corporal  oaths,"  etc.,  and  then  in  the  latter 
part  of  the  caption  say:  "The  said  A.  B.,  C.  D.,  and  E.  F.,  being  first 
duly  sworn  by  me  as  witnesses  in  said  case,"  etc.  Then,  at  the  commence- 
ment of  each  deposition,  say:  "Interrogatories  propounded  to  the  said 
A.  B.,  a  witness  produced  and  sworn  as  aforesaid,  on  the  part  of  the  said 
and  his  answers  thereto,  as  follows:" 

"Interrogatory  First."     (Here  insert  the  interrogatory.) 

"Answer  to  first  interrogatory."    (Here  insert  answer.) 

And  so  on  successively  with  all  the  interrogatories  to  be  propounded  to 
that  witness.  Then  insert  the  cross  interrogatories  as  before  directed. 
The  deposition  should  then  be  read  over  to  the  witness,  and  signed  and 
sworn  to  by  him  before  the  next  witness  is  examined.  Then  proceed  with 
the  second  and  third  witnesses  in  like  manner,  to  the  end. 

One  certificate  as  to  the  time,  place  and  manner  of  taking  such  deposi- 
tions, and  that  each  one  was  signed  and  sworn  to  by  such  witnesses  re- 
spectively, will  be  sufficient,  provided  due  care  be  taken  to  insert  the 
names  of  ALL  the  witnesses,  and  the  certificate  in  other  respects  be  in 
conformity  with  the  form  given  in  the  first  instance. 

Great  care  should  always  be  taken  to  attach  such  deposition  firmly  to- 
gether, by  means  of  tape  or  ribbon,  and  using  wax,  wafers,  or  eyelets,  when 
necessary. 

2458.    Notice  of  taking  of  depositions  (Missouri) . 

[Title.] 

To  the  Above  Named  Defendant. 

You  are  hereby  notified  that  depositions  of  witnesses,  to 
be  read  in  evidence  in  the  above  entitled  cause,  on  the  part 


Chapter  CXXXIIL]  1693  [Form  2459. 

of  the  plaintiff  will  be  taken  at in  the  county  of 

and  state  of on  the day  of ,  19. .,  be- 
tween the  hours  of  eight  o'clock  in  the  forenoon  and  six 
o'clock  in  the  afternoon  of  that  day;  and  that  the  taking  of 
said  depositions,  if  not  completed  on  that  day,  will  be  con- 
tinued from  day  to  day,  at  the  same  place  and  between  the 
same  hours,  until  completed. 

L....  M...., 
Attorney  for  Plaintiff. 
Service  of  the  above  notice  is  hereby  acknowledged,  and 
issue  of  dedimus,  and  all  exceptions  as  to  time,  waived. 

Dated ,  19.. 

R....  S...., 
Defendant's  Attorney. 

2459.    Notice  to  take  depositions  (Oklahoma). 

[Title.] 

To  C . . . .   D . . . .  defendant  and  to  G H his  at- 
torney of  record. 

TAKE  NOTICE,  That  on  the  ....  day  of ,  19. ., 

the  plaintiff  above  named  will  take  the  depositions  of  E. . . . 
F. . . .  and  N , . . .  0 . . . .  to  be  used  as  evidence  on  the  trial 

of  the  above  entitled  action  at beginning  at  the  hour 

of  ....  o'clock  A.  M.  of  said  day,  and  that  the  taking  of  the 
same  will  be  adjourned  and  continued  from  day  to  day  at 
the  same  place  until  they  are  completed. 
[Dated.] 

L....  M 

Plaintiff's  Attorney. 

Instructions  accompanying  the  above  notice. 

INSTRUCTIONS. 
To  be  Strictly  Followed. 

349 — 1.  Depositions  may  be  taken  out  of  this  State  by  a  Judge,  Jus- 
tice or  Chancellor  of  any  Court  of  Record,  a  Justice  of  the  Peace,  Notary 
Public,  Mayor  or  Chief  Magistrate  of  any  city  or  town  corporate,  a  Com- 
missioner appointed  by  the  Governor  of  this  State  to  take  depositions  or 
any  person  authorized  by  special  commission  from  this  State. 

350 — 2.  The  officer  taking  depositions  must  not  be  a  relative  or  attor- 
ney ol  either  party,  or  otherwise  interested  in  the  event  of  the  suit. 

354 — 3.     The  deposition  shall  be  written  in  the  presence  of  the  officer 


Form  2459.]  1694  [Chapter  CXXXIII. 

taking  the  same,  either  by  the  ofTicer,  the  witness,  or  some  disinterested  per- 
son and  subscribed  by  the  witness. 

355 — 4.  The  depositions  so  taken  shall  be  sealed  up  and  endorsed  with 
the  title  of  the  cause  and  the  name  of  the  ofTicer  taking  the  same,  and  by 
him  addressed  and  transmitted  to  the  Clerk  of  the  Court  where  the  action 
of  proceeding  is  pending. 

358 — 5.  If  the  officer  taking  the  same  has  no  ofTicial  seal,  the  deposi- 
tion if  not  taken  in  this  State,  shall  be  certified  and  signed  by  such  officer, 
and  shall  be  further  authenticated  by  the  official  seal  and  certificate  of 
the  Secretary  or  other  officer  of  the  State  keeping  the  great  seal  thereof, 
or  of  the  Clerk  or  other  notary  or  any  clerk  having  a  seal,  attesting  that 
such  judicial  or  other  officer  was,  at  the  time  of  taking  the  same,  duly 
qualified  and  acting  as  such  officer. 

359 — 6.  The  officer  taking  the  depositions  shall  annex  thereto  a  certi- 
ficate showing  the  following  facts :  That  the  witness  was  first  duly  sworn 
to  testify  to  the  truth,  the  whole  truth  and  nothing  but  the  truth;  that 
the  deposition  was  reduced  to  writing  by  some  proper  person,  naming 
him;  that  the  deposition  was  written  and  subscribed  in  the  presence  of 
the  officer  certifying  thereto;  that  the  deposition  was  taken  at  the  time 
and  place  signified  in  the  notice. 

FORMS. 

1.    HEADING  TO  DEPOSITIONS, 

"Depositions  of  witnesses  taken  to  be  used  in  an  action  pending  in  the 
Court  within  and  for  the  County  of ,  in  the  State  of  Oklahoma, 


wherein plaintifT,  and defendant,  in  pursuance  of 

the  notice  hereto  attached  and  at  the  time  and  place  therein  stated.  The 
said plaintiff  appeared  in own  behalf  [or  by attor- 
ney] and  the  said defendant,  in own  behalf  [or  by 

attorney]  [or  if  the  adverse  party  does  not  appear  nothing  need  be  said 

as  to  his  appearance.]    And  thereupon  the produced  the  following 

witnesses  in  order,  to-wit: of  lawful  age,  being  first  duly  sworn  de- 

poseth  and  saith .    Also who,  being  first  duly  sworn,  deposeth 

and  saith,"  etc. 

Where  the  witness  is  examined  by  questions  the  form  will  be  as  above, 
adding  after  "saith,"  "in  reply  to  the  interrogatories  propounded  to-wit," 
etc. 

2.     CERTIFICATE  ATTACHED  TO  DEPOSITION. 

I, (Justice  of  the  Peace  or  Judge,  Notary,  etc.)  within  and 

for  the  County  of in  the  State  of  Oklahoma,  do  hereby  certify  that 

the  above  named ,  the  witnesses  whose  names  are  severally  subscribed 

to  the  foregoing  depositions,  were  by  me  first  duly  sworn  (or  affirmed),  to 
testify  to  the  truth,  the  whole  truth  and  nothing  but  the  truth,  in  the  case 
aforesaid,  and  that  the  depositions  by  them  respectively  subscribed  were 
reduced  to  writing  by and  subscribed  by  the  respective  wit- 
nesses in  my  presence,  and  the  same  were  taken  on  the day  of 

A.  D.  19 ,  between  the  hours  of  8  o'clock  a.  m.  and  6  o'clock  p.  m.  of 

said  day  and  at  the  office  of  in  the  Town  of in  the  County  of 

and of as  specified  in  the  notice  thereto  attached,   and 

that  I  am  not  attorney  for  either  of  said  parties  or  otherwise  interested 
in  the  event  of  said  action. 


Chapter  CXXXIII.]  1695  [Form  2459. 

N.  B. — If  the  officer  has  no  ofTicial  seal,  his  official  character  must  be 
certified  as  directed  in  section  3. 

3.     ENDORSEMENT  ON  ENVELOPE. 

Pl'ff 

vs. 
Dft 


To  the  Clerk  of  the Court  of County,  State  of  Oklahoma  • 

at State  of  Oklahoma.  Depositions  taken  by  me. 

[Signed] 

[Title  of  Officer] 


4.     AFFIDAVIT  OF  SERVICE. 


% 


STATE  OF  OKLAHOMA, 

County.  Jss. 

being  duly  sworn,  states  that  he  made  service  of  the  within 

notice  on by  delivering  to his  attorney  of  record, 

a  duplicate  thereof  at State  of  Oklahoma,  on A.  D.  19 — 

Subscribed  in  my  presence  and  sworn  to  before  me 
this day  of A.  D.  19— 


CHAPTER  CXXXIV. 


PERPETUATION  OF  TESTIMONY. 


2460.  Application  for  perpetuation 

of  testimony  of  witness 
within  the  state.  (Wis- 
consin and  Minnesota). 

2461.  Notice  thereon.     (Wisconsin 

and  Minnesota). 

2462.  Certificate   to   same.     (Wis- 

consin and  Minnesota). 

2463.  Application   for  commission 

to  perpetuate  the  testi- 
mony of  witnesses  outside 
of  the  state.  (Wisconsin 
and  Minnesota). 

2464.  Order    thereon.     (Wisconsin 

and  Minnesota). 

2465.  Commission,  return,  and  cer- 

tificate, in  proceedings  for 
the  perpetuation  of  testi- 
mony. (Wisconsin  and 
Minnesota). 

2466.  Application  to  take  deposi- 

tion for  the  perpetuation 
of   testimony    against    all 


persons.     (Wisconsin). 

2467.  Commission  thereon.     (Wis- 

consin). 

2468.  Notice    of    perpetuation    of 

testimony,  as  against  all 
persons,  to  be  given  by 
commissioner.  (Wiscon- 
sin). 

2469.  Return    and    certificate    in 

proceedings  to  perpetuate 
testimony  against  all  per- 
sons.    (Wisconsin). 

2470.  Petition  for  perpetuation  of 

testimony.  (Iowa,  South 
Dakota  and  Nebraska). 

2471.  Order  thereon.     (Iowa, 

South  Dakota  and  Neb- 
raska). 

2472.  Petition  for  perpetuation  of 

testimony.  (North  Dak- 
ota). 

2473.  Order    thereon.     (North 

Dakota). 


The  statutes  governing  the  perpetuation  of  testimony 
where  suit  has  not  yet  been  brought,  are  quite  similar  in 
substance  in  the  various  states,  but  differ  in  essential  de- 
tails. Close  attention  to  the  statutes  should  be  paid  in  any 
case,  as  the  courts  will  doubtless  require  full  compliance 
with  all  the  statutory  requirements  before  allowing  the  in- 
troduction of  such  testimony  in  evidence.  Accola  v.  C, 
B.  &  Q.  R.  R.  Co.,  70  Iowa,  185;  30  N.  W.  503.  The 
various  provisions  on  the  subject  will  be  found  cited  in  the 
note.^ 


1  Wis.  Stats.  1913  sec.  4117  d  seq; 
Ariz.  R.  S.  1913  sec.  1721  et  seq; 
Ark.  Dig.  of  Stats.  1904  sec.  3196 
ef  seq;  Cal.  C.  C.  P.  1906  sec.  2083 
et  seq;  Colo.  Code  Ann.  1911  sec.  399 


ef  seq;  Idaho  Rev.  Codes  1908  sec. 
6116  et  seq;  Iowa  Ann.  Code  1897 
1909  sec.  4718-4723;  Kans.  Gen. 
Stats,  sec.  5981  et  seq;  Mont.  Rev. 
Codes  1907  sec.  8042  et  se9;Minn. 


Chapter  CXXXIV.]  1697  [Form  2460. 

2460.  Application  for  perpetuation  of  testimony  of  wit- 
ness within  the  state  (Wisconsin  and  Minne- 
sota). 

STATE  OF  WISCONSIN. 
Court County. 


In  the  Matter  of  the  AppUcation 
of  A ... .  B . . . .  for  the  per- 
petuation of  the  testimony  of 
M....  N...., 


[Venue.] 

A . . . .  B . . . . ,  being  duly  sworn,  says  that  he  is  the  owner 
in  fee  simple,  and  entitled  to  the  possession  of  that  certain 
parcel  of  land  in  said  county  described  as  follows  [insert 
description],  and  that  the  said  land  is  now  wrongfully  oc- 
cupied and  withheld  from  the  plaintiff  by  C . . . .  D . . . . 
and  Y.  .  . .  Z. .  . .  [or  otherwise  state  the  plaintiff's  title,  claim 
or  interest,  and  the  subject  in  dispute,  according  to  the  fact]. 
That  the  names  and  residences  of  all  persons  who  are  inter- 
ested or  supposed  to  be  interested  in  the  plaintiff's  said  title 

and  claim,  and  in  the  said  land,  are  as  follows:     C 

D . . . .  of state  of ;  Y Z . . . .  of 

state  of ;  [and  0 . . . .  P ,  whose  residence  is  un- 
known].   That  one  M . . . .  N . . . .  of in  said  county, 

knows  certain  facts  concerning  plaintiff's  said  title  and  claim 
which  the  affiant  deems  material  and  essential  to  said  title 
and  claim,  and  affiant  therefore  desires  to  perpetuate  the 
evidence  of  the  said  M . . . .  N . . . .  *  and  requests  that  his 
deposition  be  taken,  as  provided  by  law  for  the  perpetuation 
of  testimony, 

A....   B.... 
[Jurat.] 

Gen.  Stats.  1913  sec.  8400  rfsc^; Mo.  881  et  seq;  Tex.   Civ.  Stats.  Ann. 

R.  S.  1909  sec.  6419  et  seq;  Neb.  1913  art.  3653;  Utah  Comp.  Laws 

R.  S.  1913  sec.  7987  et  seq;  N.  Dak.  1907  sec.  3466  et  seq;  Wash.  Rem. 

Rev.  Codes  1905  sec.  7308  et  seq;  and  Bal.  Code  1910  sec.  1249  et  seq; 

S.  Dak.  C.  C.  P.  1908  sec.  542  et  Wyo.  Comp.  Stats.  1910  sec.  5044 

seq;  Okla.   Comp.  Laws  1909  sec.  et  seq. 
5866  et  seq;  Oregon  Laws  1910  sec. 
107 


Forms  2461,  2462.]  1698  [Chapter  CXXXIV. 

2461.  Notice  thereon  (Wisconsin  and  Minnesota). 

[Title  as  in  last  form.] 

To  C . . . .   D . . . .   of   county  of   state  of 

;  Y Z . . . .  of county  of state  of 

[and  to  0 ... .  P . . . . ,  whose  residence  is  unknown]. 

You  and  each  of  you  are  hereby  notified  that  upon  the 
written  appHcation  of  A ...  .  B . . ,  , ,  the  deposition  of  M  . . . . 

N. . . .  of will  be  taken  before  the  undersigned,  judge 

of  the court  for  the  county  of state  of , 

at  his  chambers  in  the  courthouse  in  the  city  of in 

said  county,  on  the  ....  day  of ,  19.  .,  at  . . .  .  o'clock 

A.  M.  of  that  day,  for  the  purpose  of  perpetuating  the  testi- 
mony of  the  said  M . . . .  N . .  .  .  concerning  the  matter  men- 
tioned in  the  said  application  of  said  A. . . .  B .  ,  .  . 

[In  Minnesota,  in  case  it  appears  that  any  of  the  persons  to 
be  notified  are  non-residents,  or  for  other  reason  can  not  be 
served,  add]:  And  it  appearing  satisfactorily  that  by  reason 
of  the  non-residence  of  said  0 . . . .  P . . . .  [or  other  cause] 
it  will  be  impossible  to  serve  this  notice  upon  him  person- 
ally, it  is  ordered  that  this  motion  be  published  for  three 
successive  weeks  in  the  N....  Z....,  a  newspaper  printed 

and  published  in  the  city  of county  of [county 

where  applicant  resides],  which  publication,  when  completed, 
shall  be  equivalent  to  personal  service  thereof  upon  said 
0....  P.... 

Dated 19.. 

J K Judge, Court. 

2462.  Certificate  to  same  (Wisconsin  and  Minnesota). 

[The  caption  and  body  of  deposition  may  follow  Form  2408, 
with  necessary  formal  changes,  and  the  certificate  as  follows]: 
[Venue.] 

I,  Q....  R....,  judge,  etc.  [give  official  title]  hereby 
certify  that  the  foregoing  deposition  was  taken  before  me  at 

......  in  the  city  of   in  said  county,  on  the   . .    . 

day  of   ,  19.  . ;  that  it  was  taken  upon  the  written 

statement  and  request  of  A ...  .  B . .  .  . ,  which  is  hereto  at- 
tached, and  upon  verbal  interrogatories;  that  it  was  reduced 
to  writing  by  myself  [or  by  the  defendant,  or  by  J ... .  R . . . . , 
a  disinterested  person],  in  my  presence  and  under  my  direc- 
tion; that  G D ,  of   and  Y Z...,  of 


Chapter  CXXXIV.]  1699  [Forms  2463,  2464. 

were  duly  notified  to  attend  upon  the  taking  of  said 

deposition  by  personal  service  upon  them  of  the  notice 
hereto  attached  [and  that  said  notice  was  duly  served  upon 
0....  P...., a  non-resident  of  said  state,  by  publication  of 
the  same  as  therein  directed];  that  A. . . .  B. . . .  and  C, . . . 
D. . .  .  attended  upon  the  taking  of  said  deposition;  that  the 
same  was  taken  in  perpetual  remembrance  of  the  thing  set 
forth  in  said  written  statement  of  A ... .  B . . . .  hereto  at- 
tached; that  the  said  deponent,  before  examination,  was 
sworn  to  testify  the  truth,  the  whole  truth,  and  nothing  but 
the  truth  relative  to  said  matter,  and  that  said  deposition 
was  carefully  read  over  to  [or  by]  said  deponent,  and  then 
subscribed  by  him. 

[Date.]  J. . . .  K Judge,  etc. 

2463.  Application  for  commission  to  perpetuate  the  tes- 

timony of  v/itnesses  outside  of  the  state  (Wis- 
consin and  Minnesota). 

[The  application  may  follow  the  first  form  given  in  this 
Chapter,  to  the  *,  and  then  continue]:  and  hereby  applies  to 
the  court  for  the  issuance  of  a  commission  to  take  the  testi- 
mony of  said  witness  in  the  manner  provided  by  law. 

A....   B.... 
[Jurat.] 

2464.  Order  thereon  (Wisconsin  and  Minnesota). 

[Title  as  in  Form  2460.]  [At   a   term,    etc.] 

Application  in  writing  having  been  duly  made  to  this 

court  by  A ...  .  B . .  .  .  for  the  issuance  of  a  commission  for 

the  perpetuation  of  the  testimony  of  M  ....  N ....  of 

state  of concerning  the  matter  and  claim  in  said  ap- 
plication set  forth,  and  it  appearing  that  C . . . .  D . . . .  of 

state  of and  Y . . . .  Z of state  of 

are  adversely  interested  in  the  case  and  in  the  appli- 
cant's said  claim,  and  are  the  only  persons  so  interested; 
IT  IS  ORDERED  that  said  apphcation  be  heard  before 

this  court,  at  the  court  house  in  the  city  of county  of 

on  the  ....  day  of ,  19. .,  at  . . . .  o'clock  A. 

M.  of  that  day,  or  as  soon  thereafter  as  counsel  can  be  heard, 
and  that  notice  of  said  application  and  statement  be  served 
on  the  said  G . . . .  D . . . .  and  Y . . . .  Z . . . .,  by  serving  upon 


Forms  2465-2467.]  1700  [Chapter  CXXXIV. 

each  of  them  a  true  copy  of  the  same,  with  a  copy  of  this  or- 
der, at  least  fourteen  days  before  the  time  above  fixed  for 
said  hearing. 

[In  Minnesota,  if  any  adverse  party  is  a  non-resident  or  his 
residence  is  unknown,  add:  And  it  is  further  ordered  that 
notice  of  the  said  appHcation  be  given  to  the  said  Y . . . .  Z . . . 
who  resides  out  of  this  state,  or  whose  residence  is  unknown, 
by  pubhshing  a  copy  of  said  statement  and  this  notice  for 
three  successive  weeks,  etc.  continue  as  in  Form  2461.] 

[This  order  must  be  made  by  the  court.] 

2465.  Commission,  return,  and  certificate,  in  proceedings 

for  the  perpetuation  of  testimony  (Wisconsin 
and  Minnesota). 

[The  statutes  of  both  Wisconsin  and  Minnesota  provide  that 
the  deposition  shall  be  taken  upon  written  interrogatories  and 
cross-interrogatories,  if  any  be  filed,  and  that  it  be  taken  and 
returned  in  substantially  the  same  manner  as  if  to  be  used  in 
an  action:  the  forms  given  in  the  last  preceding  chapter,  there- 
fare,  may  be  used  with  such  incidental  changes  as  are  made  nec- 
essary by  the  fact  that  the  deposition  is  not  taken  in  an  action 
pending,  but  only  to  perpetuate  testimony.  Wis.  Stats.  1913  sec. 
4127;  Minn.  Gen.  Stats.  1913  sec.  8410.] 

2466.  Application  to  take  deposition  for  the  perpetua- 

tion of  testimony  against  all  persons    (Wis. 
Stats.  1913  sec.  4130). 

[This  proceeding  is  peculiar  to  Wisconsin;  the  application 
may  follow  Form  2463,  adding  at  the  end  thereof  the  phrase: 
"so  that  the  same  n^ay  be  evidence  against  all  persons."] 

A....  B.... 
[Jurat.] 

2467.  Commission  thereon  (Wisconsin). 

[Title.] 

THE  STATE  OF  WISCONSIN  to  L. . . .  M Esq.,  of 

and  state  of 

Whereas  written  application  has  been  duly  made  by  A ... . 
B . . . .  to  our  said  court  for  the  taking  of  the  deposition  of 
M . . . .  N .  . . .  of  state  of  in  order  to  per- 
petuate the  testimony  of  the  said  M.  .  .  .  N.  .  .  .  with  refer- 


Chapter  CXXXIV.]  1701  [Form  2468. 

ence  to  the  matters  and  claims  in  said  appHcation  set  forth, 
and  the  court  being  satisfied  that  there  is  sufficient  cause  for 
the  taking  of  the  deposition  of  said  M ....  N .... ;  and  where- 
as we,  having  full  confidence  in  your  prudence  and  ability, 
have  appointed,  and  by  these  presents  do  appoint  you  a  com- 
missioner to  examine  said  M N . . . . ; 

NOW  THEREFORE  we  do  authorize,  etc.  [follow  Form 
2413  adding  at  the  end,  before  the  words  "Witness,  etc.,"  the 
following]:    You  are  also  hereby  directed  to  publish  in  the 

[name  newspaper],  a  newspaper  published  at state  of 

,  for  three  successive  weeks   [or  otherwise,   as  court 

deems  best],  a  notice  stating  the  time  and  place  of  the  taking 
of  such  deposition,  with  a  brief  statement  of  the  subject- 
matter  thereof,  which  notice  shall  be  addressed  specially  by 
name  to  [name  all  persons  known  or  supposed  to  be  interested 
in  the  case]  and  generally  to  all  other  persons,  in  order  that 
they  may  attend  and  propose  cross-interrogatories  to  said 
witnesses  [which  notice  shall  also  be  personally  served  on, 
name  persons]  at  least  ....  days  before  the  time  appointed 
for  the  taking  of  said  deposition. 

WITNESS,  etc.  [follow  attesting  clause  of  Form  2413.] 

2468.  Notice  of  perpetuation  of  testimony,  as  against  all 
persons,  to  be  given  by  commissioner  (Wis. 
Stats.  1913  sec.  4132). 

[Title  as  in  first  form  in  this  Chapter.] 

To  C . . . .  D . . . .  of state  of [name  all  others 

known   or  supposed  to  be  interested]  and  to  all  other 

persons. 
You  and  each  of  you  are  hereby  notified  that  the  deposi- 
tion of  M. . . .  N. . .,  for  the  purpose  of  perpetuation  of  the 
testimony  of  said  M . . . .  N . . . .  concerning  the  matter  here- 
inafter named,  will  be  taken  by  and  before  the  undersigned, 

as  commissioner,  at  [name  place],  on  the  ....  day  of , 

day  of 19 . . ,  at  . . . .  o'clock  . .  M.,  and  that  you  and 

each  of  you  may  attend  at  said  time  and  place  and  propose 
cross-interrogatories  to  said  witness. 

You  are  further  notified  that  the  subject-matter  of  said 
deposition,  and  of  the  testimony  of  said  M . . . .  N .  .  . .  will 
be  the  claim  of  A. .  .  .  B. . . .  that  he  is  the  owner,  and  en- 
titled to  possession  of  that  certain  parcel  of  land  [describe 


Forms  2469,  2470.]  1702  [Chapter  CXXXIV. 

same]  and  that  C . . . .  D .  .  .  .  and  Y . .  . .  Z . . . .  wrongfully 
occupy  and  withhold  the  same  [or  state  nature  of  subject, 
according  to  the  fact.] 

[Date.]  P....   Q...., 

Commissioner. 

2469.  Return  and  certificate  in  proceedings  to  perpet- 

uate testimony  against  all  persons  (Wisconsin). 

[The  return  and  certificate  may  follow  substantially  Form 
2414,  with  such  incidental  changes  as  are  made  necessary  by 
the  difference  in  the  situation,  adding  to  the  certificate  the  proper 
clauses  showing  that  notice  was  given  by  the  commissioner, 
according  to  sec.  4132  Wis.  Stats.  1913,  and  the  directions  of 
the  court.] 

2470.  Petition  for  perpetuation  of  testimony   (Iowa, 

South  Dakota  and  Nebraska). 

[State  and  Court.] 


In  the  Matter  of  the  Application 

of  A.... 

B.. 

. .  for  the   per- 

petuation 

of 

the     testimony 

of  M.... 

N. 

- 

To  the Court  of County,  State  of 

THE  PETITION  of  A. . . .  B.  .  .  .  respectfully  shows  to 
the  court  that  he  is  the  owner  in  fee  of  certain  lands  [describ- 
ing them]  now  wrongfully  withheld  from  him  by  [name  ad- 
verse parties],  and  that  he  desires  to  perpetuate  the  testi- 
mony of  one  M ....  N ....  of in  said  county  with  ref- 
erence to  the  said  title  and  claim  of  the  plaintiff  to  said  lands, 
and  to  propound  to  the  said  M . . . .  N .  . .  .  the  following  in- 
terrogatories [here  set  forth  questions  in  full]. 

That  C .  . . .  D . .  .  .  and  [name  others,  if  any]  of are 

the  only  persons  interested  in  the  said  subject-matter  of 
this  proceeding  [or  if  not  known  by  name,  describe  the  persons 
as  devisees,  alienees,  or  otherwise.] 

That  your  petitioner  expects  to  be  the  plaintifT  [or  defend- 
ant] in  an  action  in  a  court  of  this  state  in  which  such  testi- 
mony will,  as  he  believes,  be  material  [add  where  petitioner 


Chapter  CXXXIV.]  1703  [Form  2471. 

expects  to  be  plaintiff]  and  that  the  obstacles  which  prevent 
the  immediate  commencement  of  said  action  by  him,  are  as 
follows  [state  obstacles]. 

WHEREFORE  petitioner  prays  that  an  order  be  made  al- 
lowing the  examination  of  said  witness  and  prescribing  the 
notice  thereof  to  be  given,  ajid  for  such  further  order  as  may 
be  just. 

A....  B.... 
[Add  verification.] 

2471.    Order  thereon    (Iowa,   South   Dakota   and   Ne- 
braska) . 

[Title  as  in  last  preceding  form.] 
[Caption.] 

On  reading  and  filing  the  verified  petition  of  A ... .  B . . . . 
in  the  above  entitled  matter,  it  appearing  satisfactorily  to 
the  court  that  the  occasion  for  the  taking  of  the  deposition 
of  said  M . . . .  N . . . .  is  a  proper  one; 

IT  IS  ORDERED  that  the  examination  of  the  said 
M....  N....,  upon  the  interrogatories  contained  in  said 
petition,  and  such  cross-interrogatories  as  may  be  filed  ac- 
cording to  law,  be  and  the  same  is  hereby  allowed  for  the 
purpose  of  perpetuating  the  testimony  of  the  said  M . . . . 
N. . . .  with  reference  to  the  subject-matter  named  in  said 
petition: 

And  further  ordered  that  said  examination  be  taken  by 

E....  F a  notary  public,  at  [name  place]  on  [name  time] 

and  *  that  C . . .  .  D . .  .  .  and  [name  others  adversely  inter- 
ested], be  notified  of  the  taking  of  said  testimony  by  personal 
service  upon  each  of  them  of  a  copy  of  said  petition,  and  of 
this  order,  at  least  ....  days  before  the  day  herein  set  for 
said  examination,  [or  if  it  appears  that  the  interested  parties 
can  not  be  personally  notified,  substitute  after  *] :  it  satisfactorily 
appearing  to  the  court  that  [name  parties  adversely  inter- 
ested], cannot  be  personally  notified,  it  is 

Further  ordered  that  0.  .  .  .  P.  .  .  .,  Esq.,  an  attorney  of 
this  court,  be  and  he  is  hereby  appointed  to  examine  said 
petition  and  prepare  and  file  cross-interrogatories  to  those 
contained  therein  on  behalf  of  said  interested  parties. 

By  the  Court: 
J K Judge. 


Forms  2472,  2473.]  1704  [Chapter  CXXXIV. 

[The  return  and  certificate  may  be  adapted  from  Forms  2439, 
2440  and  2441. ] 

2472.    Petition  for  perpetuation  of  testimony    (North 
Dakota). 

[State  and  Court.] 


In  the  Matter  of  the  Application 
of  A ... .  B . . . .  for  the  per- 
peruation  of  the  testimony  of 
M....  N 


To  the  Hon.  J . . . .  K . . . .,  Judge  of  the Court. 

THE  PETITION  of  A B respectfully  shows  that 

he  expects  to  be  plaintiff  [or  defendant]  in  an  action  in  a 
court  of  this  state,  and  that  he  expects  that  C. . . .  D. . . . 

and  E . . . .  F . . . .  of in  said  state  will  be  the  adverse 

parties  in  said  action. 

Or:  that  he  is  interested  as  joint  tenant  in  certain  real 
estate  [describing  same],  and  that  it  is  necessary  in  order  to 
prove  and  perfect  his  title  thereto  that  the  fact  that  he  was 
and  is  the  son  and  heir  at  law  of  one  P . . . .  Q . . . .  be  proven 
[or  state  the  fact  as  it  is],  though  no  action  is  now  anticipated. 

That  one  M N . . . .  of county  of state  of 

is  personally  cognizant  of  the  fact  of  the  applicant's 

said  heirship,  and  that  your  petitioner  expects  to  prove  by 
said  M .  . . .  N . . , .    [here  state  specific  facts]. 

WHEREFORE  your  petitioner  prays  for  an  order  allow- 
ing said  examination,  and  prescribing  the  proper  notice 
thereof,  and. for  such  other  order  as  may  be  just  and  proper. 

A....  B.... 
[Add  verification.] 

2473.    Order  thereon  (North  Dakota). 

[Title  as  in  last  preceding  form.] 

Upon  reading  and  filing  the  petition  of  A. . . .  B ,  it 

appearing  to  me  that  sufTicient  cause  exists  therefor: 

ORDERED   that   the   examination   of  the   said   M 

N be,  and  the  same  is  hereby  allowed,  and  that  the  depo- 
sition of  the  said  M . . . .  N . . . .  for  the  purpose  of  perpetuat- 
ing his  testimony  with  reference  to  the  subject-matter  named 


Chapter  CXXXIV.]  1705  [Form  2473. 

in  said  petition,  be  taken  before  E....   F....,  a  notary 

public  at   on   ,   19..,  and  C D...   and 

[name  other  adverse  parties]  be  notified  of  the  taking  of  said 
depositions  by  personal  service  upon  each  of  them  of  a  copy 
of  this  notice,  and  of  said  petition  at  least days  be- 
fore the  time  fixed  for  the  taking  of  said  depsoition.  [//  the 
adverse  parties  are  unknown,  or  reside  out  of  the  state,  the  order 
must  prescribe  here  notice  bij  publication,  or  otherwise,  as  the 
judge  directs,  instead  of  personal] 

It  is  further  ordered  that  when  the  said  deposition  shall 
have  been  taken,  the  said  officer  taking  the  same  shall  duly 
certify  and  return  the  same  to  C. . . .  K. . . .,  Esq.,  clerk  of 

the court  for county,  at  his  office  in 

county  of state  of  North  Dakota. 

[Date.] 

J. . . .  K ,  District  Judge. 

[//  the  testimony  be  taken  in  another  state,  it  must  be  taken 
upon  commission.    For  forms,  see  the  preceding  Chapter.] 


CHAPTER  CXXXV. 


NOTICES  OF  TRIAL. 


2474.  Notice  of  trial  and  note  of 

issue.     (Wisconsin). 

2475.  The  same.     (Minnesota). 


2476.  The  same.     (North  Dakota 

and  South  Dakota). 

2477.  Notice  of  trial.     (Iowa). 


2474.    Notice  of  trial  and  note  of  issue  (Wis.  Stats.  1913 
sec.  2845). 

STATE  OF  WISCONSIN. 
Court County. 


A....  B 

vs. 
C...  D...., 


Plaintiff, 


Defendant. 


PLEASE  TAKE  NOTICE  that  the  above  entitled  action 

will  be  brought  to  trial  at  the term  of  the  aforesaid 

court,  to  be  held  at  the  court  house  in  the  ....  of in 

the  said  county  of on  the  ....  day  of next,  at 

the  opening  of  court  on  that  day,  or  as  soon  thereafter  as 
counsel  can  be  heard. 

Dated ,  19. .     Yours,  etc., 

E....F 

To  G H . . . .,  Plaintiff's  Attorney. 

Attorney  for  Defendant. 
[Admission  of  service  of  above]:    Service  of  a  copy  of  above 

notice  admitted  this  ....  day  of ,  19 . , 

G....H...., 
Defendant's  Attorney. 
[The  note  of  issue  is  usually  attached  to  the  notice  of  trial  as 
follows] : 

Note  of  Issue  in  the  above  Entitled  Cause. 

E F ,  Plaintiff's  Attorney. 

G. . . .  H. . . .,  Defendant's  Attorney. 


Chapter  CXXXV.]  1707  [Forms  2475-2477. 

Issue  of  fact  [or  law]  for  jury  [or  court].    Joined , 

19.. 

Filed  by  E F ,  Plaintiff's  Attorney, ,  19. . 

1VI....N Clerk. 

2475.  The  same  (Minn.  Gen.  Stats.  1913  sec.  7793). 

[The  notice  of  trial  may  follow  the  last  preceding  form  and 
the  note  of  issue  as  follows]: 
[Title  of  cause.] 

Note  of  Issue. 

Issue  of  [fact  or  law]  for  [court  or  jury]. 

Last  pleading  served ,  19.  . 

E. . .  .  F Attorney  for  Plaintiff. 

G. . . .  H . . . .,  Attorney  for  Defendant. 

Filed 19..  _ 

C....K....,  Clerk. 

2476.  The  same  (N.  Dak.  Rev.  Code  sec.  7011;  S.  Dak. 

C.  C.  P.  1908  sec.  246). 

[The  notice  of  trial  and  note  of  issue  may  follow  the  Minne- 
sota form  last  given.] 

2477.  Notice  of  trial  (Iowa  Code  1907  sec.  3658). 

[In  Iowa  notice  of  trial  is  only  required  in  an  action  which 
has  been  continued  after  issue  Joined.  Iowa  Code  1907  sec. 
3658;  Erickson  v.  Barber,  83  Iowa,  367;  49  N.  W.  838.  The 
notice  when  necessary  may  doubtless  follow  the  first  form  given 
in  this  chapter  for  use  in  Wisconsin.] 


CHAPTER  CXXXVI. 


CONTINUANCE    OR   POSTPONEMENT   OF   TRIAL. 


2478.  Affidavit     for     continuance 

because  of  absence  of  wit- 
nesses.    (Wisconsin). 

2479.  The    same,    for    unexpected 

absence  or  illness  of  wit- 
ness. 

2480.  Affidavit     for     continuance 

because  of  absence  of  docu- 


mentary evidence.     (Wis- 
consin). 

2481.  Affidavit     for     continuance 

because  of  sickness  of  sole 
counsel. 

2482.  Motion  for  continuance. 

(Iowa). 

2483.  Order    continuing    or    post- 

poning trial. 


Applications  to  postpone  the  trial  of  a  cause  to  a  subse- 
quent term  or  to  a  future  day  in  the  current  term  are  ad- 
dressed to  the  sound  discretion  of  the  court.  In  general  terms 
it  may  be  said  that  such  applications  must  be  accompanied 
by  proof  showing  that  the  party  applying  has  used  due  dili- 
gence to  prepare  for  trial  and  also  what  diligence  has  been 
used;  that  he  can  not  safely  proceed  to  trial  without  certain 
evidence  or  witnesses  which  are  not  at  hand  and  cannot  be 
at  hand  if  the  trial  proceeds  at  once;  that  due  effort  has  been 
used  [describing  it]  to  procure  such  evidence,  or  the  attend- 
ance of  such  witnesses;  the  names  and  residences  of  such  wit- 
nesses, and  what  facts  [as  distinguished  from  legal  con- 
clusions] they  will  swear  to,  and  the  reasons  of  the  applicant 
for  his  belief  that  they  will  so  swear;  also  sufficient  facts 
showing  reasonable  grounds  to  believe  that  such  testimony 
or  witnesses  can  be  obtained  if  the  action  be  continued  as  re- 
quested, and  that  there  are  no  other  documents  or  witnesses 
which  can  be  procured  by  whom  the  facts  can  be  proven. 

The  procedure  is  governed  in  some  states  entirely  by 
statute  and  in  others  by  rules  of  court  in  addition  to  the 
statutes.  No  motion  should  be  made  without  carefully 
consulting  the  statutes  and  rules  of  court  of  the  particular 
state. 


Chapter  CXXXVL]  1709  [Form  2478- 

2478.    Affidavit  for  continuance  because  of  absence  of 
witnesses  (Wisconsin). 

[Title  of  court.] 


A....  B...., 

vs. 
C...  D...., 


Plaintiff, 


Defendant. 


[Venue.] 

C . . . .  D .  . . . ,  being  first  duly  sworn,  says  that  he  is  the  de- 
fendant in  the  above  entitled  action;  that  issue  was  joined 
therein  on  the  ....  day  of ,  19. .,  and  that  this  de- 
fendant has  a  valid  defense  in  whole  in  said  action  [or  in 
part,  specifying  which  part]. 

That  this  affiant  has  fully  and  fairly  stated  the  case  to 

G. . , .  H. . . .,  Esq.,  his  counsel  herein,  who  resides  at 

in  said  county,  and  that  upon  the  statement  thus  made  he  is 
advised  by  said  counsel  that  he  has  a  valid  and  substantial 
defense  to  said  action  and  the  whole  thereof,  [or  to  some 
specific  part  thereof,  stating  what  part.]* 

That  affiant  has  used  due  diligence  to  prepare  for  trial  of 
this  action  at  the  present  term;  that  he  caused  a  subpoena  to 
be  issued  herein  on  the  ....  day  of ,  19. .,  for  ser- 
vice on  L . . . .  M .  .  .  .  and  O .  . .  .  P . . . ,  [or  otherwise  state 
what  efforts  were  made  to  procure  the  attendance  of  the  wit- 
nesses]; that  the  sheriff  of  said  county  to  whom  said  sub- 
poena was  on  that  day  delivered,  informs  this  affiant  that 
said  M .  . .  .  N .  . . .  and  said  0 . . . .    P . . . .  are  now  absent 

from  this  state  and  somewhere  in state  of , 

having  left  this  state  about ,  19. . ;  that  their  resi- 
dence in  this  state  is  the  town  of county  of , 

and  defendant  has  made  inquiry  in  the  neighborhood  of 
their  residence  and  is  informed  that  they  are  temporarily 
absent,  but  not  expected  to  return  for  about months.  ** 

That  said  M .  .  .  .  N .  . .  .  and  O . .  . .  P .  . . .  are  necessary 
and  material  witnesses  without  whose  testimony  he  cannot 
safely  proceed  to  trial;  and  that  no  other  evidence  is  at  hand, 
nor  witness  nor  witnesses  in  attendance  or  known  to  him, 


Form  2479.]  1710  [Chapter  CXXXVI. 

whose  testimony  could  have  been  procured  in  time,  upon 
whom  he  can  safely  rely  to  prove  the  particular  facts  that  he 
expects  to  prove  and  believes  can  be  proved  by  such  absent 
witnesses  above  named,  to  maintain  the  issue  in  respect 
thereto  on  his  part. 

That  after  fully  and  fairly  stating  to  his  said  counsel  the 
facts  which  he  expects  to  prove  by  said  absent  witnesses  he  is 
advised  by  his  said  counsel  and  verily  believes  that  he  can 
not  safely  go  to  trial  without  the  testimony  of  each  of  them. 

That  neither  of  said  witnesses  is  absent  by  this  affiant's 
consent,  connivance  or  procurement;  that  they  left  without 
his  knowledge;  and  soon  after  the  joining  of  issue  herein, 
each  of  them  told  this  affiant  personally  that  he  expected  to 

be  in   county  when  the   term  of  this  court 

should  be  held,  and  for  that  reason  this  affiant  took  no  steps 
to  procure  their  depositions  to  be  used  upon  the  trial  hereof. 

Affiant  further  says,  that  he  expects  to  prove  by  said 
M . . .  .  N . . . .  the  following  facts,  viz.  [here  state  facts]  and 
by  said  0 . . . .  P.  . . .  the  following  facts  [state  same]. 

That  the  grounds  of  his  expectation  that  he  can  prove 
such  facts  by  said  witnesses  are  as  follows  [state  grounds  as 
for  instance,  that  each  of  said  witnesses  has  stated  to  affiant 
that  they  could  and  would  testify  to  said  facts,  or  otherwise 
according  to  the  fact]. 

Affiant  further  says  that  if  a  continuance  of  the  trial  of 

this  action   [or  a  postponement  of  the  trial  until    

19. .]  be  granted  he  will  be  able  as  he  believes  and  intends 
to  procure  the  attendance  of  said  witnesses  [or"  will  take  the 
depositions  of  said  witnesses  for  use  on  the  trial]. 

C...  D.... 
[Jurat.] 

2479.    The  same,  for  unexpected  absence  or  illness  of 
witness. 

[Proceed  as  in  last  preceding  form,  substituting  between  * 
and  **  the  following]: 

That  affiant  has  used  due  diligence  to  prepare  for  the  trial 
of  this  action  at  the  present  term,  that  he  expected  to  call  as  a 
witness  on  said  trial  one  M . . . .  N .  . . .,  and  that,  two  weeks 
before  the  first  day  of  the  present  term  affiant  went  to  the 
residence  of  said  witness,  in  the  town  of ,  in  the  county 


Chapter  CXXXVL]  1711  [Form  2480. 

of ,  for  the  purpose  of  subpoenaing  him  to  attend  as  a 

witness  in  said  action,  at  said  circuit;  that  he  there  learned 
that  said  witness  had  unexpectedly  left  home  the  day  before, 

in  order  to  go  to  the  state  of ,  and  intended  to  remain 

there  about  two  months;  and  deponent  further  says,  he  had 
no  knowledge  that  said  witness  was  going  to  be  absent  from 
home,  until  he  learned  it  when  he  went  to  subpoena  said 
witness,  as  aforesaid; 

[Or,  That  one  M. . . .  N. . . .,  who  resides  at ,  was, 

on  the  ....  day  of last  past,  duly  subpoenaed  to  at- 
tend the  trial  of  this  action;  but  that  since  the  service  of  the 
said  subpoena  he  has  become  seriously  ill,  and  is  now  wholly 
unable  to  attend  this  court,  or  be  present  at  the  trial  of  this 
action  in  its  order  on  the  calendar.  But  deponent  has  been 
mformed  by  R ,  . . .  S . . . . ,  the  physician  attending  the 
said  witness,  and  verily  believes,  that  the  said  witness  will 
be  able  to  attend  this  court  by  the  time  of  the  next  circuit, 
appointed  to  be  held  at,  etc.] 

[Make  such  incidental  changes  in  the  other  statements  of  the 
preceding  form  as  are  necessary.] 

2480.    Affidavit  for  continuance  because  of  absence  of 
documentary  evidence  (Wisconsin). 

[Title  of  court  and  cause.] 

[Proceed  as  in  first  form  in  this  chapter  to  the  *,  continuing 
as  follows]:  That  there  are  in  existence  certain  written 
books  [or  documents,  describing  them,  e.  g.,  consisting  of  the 
business  account  books  kept  by  the  plaintiff  in  his  business 
during  the  year  19.  .]  without  examination  and  production  of 
which  upon  the  trial  affiant  cannot  safely  proceed  to  the  trial 
of  this  cause  as  he  is  advised  and  verily  believes  after  fully 
and  fairly  stating  to  his  said  counsel  the  facts  which  he  ex- 
pects to  prove  by  said  books  [or  documents]. 

That  said  books,  [or  documents]  are  now,  as  he  is  informed 
and  verily  believes  [state  where  and  in  whose  custody  they  are 
believed  to  be],  that  they  are  not  absent  by  the  affiant's  pro- 
curement, consent  or  connivance;  that  up  to  the  ....  day  of 

,  19. .,  said  books  were  [state  where]  and  could  have 

been  produced  here  upon  the  trial  of  this  case  and  affiant  re- 
lied upon  such  fact  and  was  not  informed  of  their  removal  nor 
did  he  learn  thereof  until  the   ....  day  of   19.., 


Form  2481.]  1712  [Chapter  CXXXVI. 

when  it  was  too  late  to  secure  their  return;  that  said  books 
[or  documents]  contain  entries  made  by  the  plaintiff  showing 
credits  for  money  paid  by  the  defendant  to  the  plaintiff  upon 
the  cause  of  action  stated  in  the  complaint  [or  otherwise 
state  the  nature  and  contents  of  the  books  or  documents]  and  that 
affiant  expects  to  prove  thereby  [here  state  the  facts  to  be 
proven  fully].  That  the  grounds  of  his  expectation  that  he 
can  prove  such  facts  by  said  books  are  as  follows  [here 
state  grounds]. 

That  the  affiant  has  used  his  best  exertions  to  procure  the 
presence  of  said  books  upon  the  trial;  that  he  [here  state  what 
efforts  were  used  as  by  giving  notice  to  produce  or  otherwise, 
or  if  the  opposing  party  gave  assurance  of  their  production, 
state  the  fact]. 

That  if  a  continuance  of  the  trial  of  this  cause  be  granted 
affiant  will  be  able  to  produce  said  books  at  the  next  term  of 
this  court  or  will  be  able  to  prove  their  contents  by  the  tak- 
ing of  depositions. 

A....  B.... 
[Jurat.] 

2481.    Affidavit  for  continuance  because  of  sickness  of 
sole  counsel  (Rice  v.  Melendy,  36  Iowa,  166). 

[Proceed  as  in  first  form  in  this  chapter  to  the  *.]  That  affiant 
has  used  due  diligence  to  prepare  for  the  trial  of  this  case  at 
the  present  term  [state  diligence  used].  That  said  G.... 
H .  . . .,  Esq.,  was  and  is  his  sole  counsel  in  the  case  and  is  the 
only  attorney  conversant  with  the  facts  of  the  case,  and  that 
said  G. . . .  H . . .  .  was  fully  prepared  and  was  relied  upon  by 
affiant  to  try  said  case  at  this  term  but  that  on  or  about  the 
....  day  of ,  19 . . ,  said  G . . . .  H . . . .  was  taken  seri- 
ously ill  and  has  been  ever  since  that  time  and  now  is  very  ill 
and  m.ost  of  the  time  in  a  delirious  condition  and  that  all 
conversation  with  him  upon  business  matters  has  been  pro- 
hibited by  the  physician  in  charge  of  the  case. 

That  said  G. . . .  H. . . .  has  possession  of  all  of  the  papers 
in  said  case  including  [here  state,  if  there  are  any,  important 
documents  and  their  nature],  and  that  it  is  and  has  been  im- 
possible for  any  other  attorney  to  become  cognizant  of  the 
facts  of  said  case  and  to  prepare  for  trial  thereof  at  this  term, 
because  of  the  condition  of  the  said  G.  .  .  .  H and  be- 


Chapter  CXXXVL]  1713  [Forms  2482,  2483. 

cause  of  the  complexity  of  the  case  and  the  many  questions 
involved.  That  said  case  involves  [here  state  facts  at  length 
showing  any  peculiar  difficulty  or  complexity  in  the  case  and 
any  other  material  facts  tending  to  show  impossibility  of  an- 
other attorney  being  able  to  prepare  for  the  trial]. 

That  said  G . . .  .  H . . . .  is  now  improving  in  health  and 
that  affiant  fully  believes  that  if  a  postponement  of  the  trial 
of  this  case  be  granted,  said  G . . . .  H .  . . .  will  be  able  to  try 
the  same  at  the  next  term,  and  that  if  this  should  be  impos- 
sible affiant  will  be  able  to  procure,  and  will  procure,  another 
attorney  to  try  said  cause. 

C...  D.... 
[Jurat.] 

[Add  corroborating  affidavit  by  physician.] 

[For  case  of  postponement  on  account  of  other  engagements  of 
sole  counsel,  see  McArthur  v.  Slauson,  60  Wis.  293;  19  N. 
W.  45.] 

2482.  Motion  for  continuance  (Iowa). 

[Title  of  action.] 

Now  comes  the  defendant  in  the  above  entitled  action  and 
moves  the  court  to  continue  the  trial  thereof  to  the  next  term 
of  this  court  [or  to  some  stated  time  later  in  the  term],  upon  the 

affidavit  of  C D. . . .,  attached  hereto  and  made  a  part 

hereof. 

C...  D...., 
[Attach  the  affidavit.]  Attorney  for  Defendant 

2483.  Order  continuing  or  postponing  trial.^ 

[Title.]  [Caption.] 

On  reading  and  filing  the  affidavit  of  C D. . . .,  and 

on  motion  of  0. . .  .  P.  . . .,  of  counsel  for  . . . .,  and  L. . . . 
M . . . . ,  of  counsel  for  ....  [or,  no  one  appearing],  in  opposi- 
tion: 

ORDERED,  that  the  trial  of  this  action  be  postponed  until 
the  . instant,  on  the  payment  within  three  days  from 


1  This  order  is  very   frequently  taken  and  may  be  advisable  when 

simply     pronounced     orally     irom  there  are  conditions  alTixed  in  order 

the  bench  in  the  j^resence  of  the  that  there  may  be  no  doubt  as  to 

parties  and  entered  in  the  minutes.  its  terms. 
A  written  order,  however,  may  be 
108 


Form  2483.]  1714  [Chapter  CXXXVI. 

date  of  ten  dollars  costs  [or,  to  the  ....  term  of  this  court,  on 
the  payment  of  costs  of  the  present  term  to  be  taxed  in- 
stanter,^  and,  here  state  other  terms,  if  any,  imposed,  such  as, 
on  the  defendant's  consenting  that  the  testimony  of  M. . . . 
N....  be  taken  conditionally  before  S....  T....,  referee, 
on  ....  days'  notice]. 

[Date.]  By  the  Court, 

J K Judge. 

'  In  Wisconsin  when  an  act  is  the  expiration  of  the  day  on  which 
directed  to  be  performed  instanter  the  order  was  made  (circuit  court 
it  is  required   to  be   done   before      rule  XII  sec.  2). 


CHAPTER  OXXXVII. 


TRIAL  BY  JURY. 


2484.  General  verdict. 

2485.  Verdict    for    defendant    on 

plaintiff's  claim  and  on 
counterclaim. 

2486.  Verdict     for     excess,     both 

parties  having  proved  a 
cause  of  action. 

2487.  Verdict  subject  to  opinion  of 

the  court.     (Wisconsin). 

2488.  Verdict  in  replevin  for  the 

plaintiff. 

2489.  The    same,    where   plaintiff 

has  only  special  property. 

2490.  Verdict  in  replevin  for  de- 

fendant. 

2491.  Verdict  for  plaintiff  in  re- 

plevin.    (Iowa). 

2492.  General  verdict  for  plaintiff 

in  ejectment.  (Wiscon- 
sin). 

2493.  Separate    verdict    in    eject- 

ment for  defendant's  im- 
provements, when  plain- 
tiff recovers  the  land. 
(Wisconsin). 

2494.  The  same,  when  a  part  only 


of  the  plaintiffs  recover. 
(Wisconsin). 

2495.  The  same,  for  a  part  of  the 

premises  only.  (Wiscon- 
sin). 

2496.  Special  verdict.     (Wiscon- 

sin). 

2497.  General  verdict  with  fndngs 

on  particular  questions. 
(Wisconsin). 

2498.  Verdict   in   milldam   action. 

(Wisconsin). 

2499.  Notice   of   motion   for  trial 

of  issues  of  fact  in  equi- 
table case,  or  issues  not 
made  by  the  pleadings, 
before  a  jury. 

2500.  Verdict  in  action  for  cutting 

timber  where  defendant 
claims  cutting  was  by 
mistake.     (Wisconsin). 

2501.  Order  for  trial  of  issues  in 

equitable  action  before 
jury. 

2502.  Notice    of    motion    for    a 

special  jury. 


2484.    General  verdict. 

[Title.] 

We,  the  jury  in  the  above  entitled  action,  find  for  the 

plaintiff  and  assess  his  damages  at dollars  [or  find 

for  the  defendant]. 

Dated 19..  0. ...  P. . ..,  Foreman. 


2485.    Verdict  for  defendant  on  plaintiff's  claim  and  on 

counter-claim. 
[Title.] 

We,  the  jury  in  this  action,  find  for  the  defendant  upon  the 
cause  of  action  stated  in  the  complaint,  and  also  find  for  the 


Forms  2486-2488.]  1716  [Chapter  CXXXVII. 

defendant  upon  his  counter-claim  and  assess  his  damages 

thereon  at dollars. 

Dated ,  19. .  O P. . . .,  Foreman. 

2486.  Verdict  for  excess,  both  parties  having  proved  a 

cause  of  action.^ 

[Title.] 

We,  the  jury  in  this  action,  fmd  for  the  plaintiff  on  the 
cause  of  action  stated  in  the  complaint  and  that  there  is  due 
thereon dollars,  and  we  also  fmd  for  the  defend- 
ant on  the  counter-claim,  stated  in  the  answer  and  that  t'lere 

is  due  thereon dollars,  and  we  assess  the  damages  of 

the  defendant  [or  plaintiff]  at  the  sum  of dollars, 

being  the  amount  of  the  excess  due  him  upon  the  above 
fiadings. 

2487.  Verdict  subject  to  opinion  of  the  court  (Wis.  Stats. 

1913  sec.  2857).^ 

Title.] 

We,  the  jury  in  this  action,  fmd  for  the  plaintiff  and  assess 

his  damages  at   dollars  [or  for  the  defendant]  as 

directed  by  the  court,  and  subject  to  the  opinion  of  the  court 
upon  the  questions  of  law. 

Dated 19 . .  0 ....  P .... ,  Foreman. 

2488.  Verdict  in  replevin  for  the  plaintiff. 

[Title.] 

We,  the  jury  in  this  action,  fmd  for  the  plaintiff  that  he  is 
entitled  to  a  return  of  the  property  described  in  the  com- 

1  It  is  held  in  Edleman  v.  Kidd,  render  a  verdict  subject  to  the 
65  Wis.  18,  26  N.  W.  116,  that  in  opinion  of  the  court.  Such  a  ver- 
case  of  an  action  on  money  demand  diet  is  only  to  he  directed  when 
to  which  a  counter-claim  is  inter-  the  material  facts  are  undisputed 
posed  it  is  unnecessary  to  'state  in  and  only  questions  of  law  remain 
the  verdict  the  amount  due  on  each  to  be  considered.  It  should  appear 
but  that  a  general  verdict  may  be  either  by  the  record  or  by  the  ver- 
rendered  by  the  jury  for  the  balance  diet  itself  that  it  was  rendered 
found  due  to  the  party  whose  claim  "subject  to  the  opinion  of  the 
is  found  to  be  the  larger.  court"  and  in  that  event  judgment 

2  It  is  provided  by  Wis.  Stats.  may  be  rendered  for  either  party 
1913  sec.  2857,  that  where  upon  as  the  court  determines  the  law  to 
the  trial  the  case  presents  only  be.  Davis  v.  Pioneer  Fur  Co.,  102 
questions  of  law  the  court  may  in  Wis.  394;  78  N.  W.  596. 

its   discretion    direct    the   jury   to 


Chapter  CXXXVIL]  1717  [Form  2489-2491. 

plaint  [or  describe  the  property  recovered]  and  assess  the  value 

of  said   property   at    dollars,   and  the  plaintiff's 

damages  by  reason  of  the  detention  [or  taking  and  withhold- 
ing] of  said  property    dollars. 

Dated ,19  0 ....  P Foreman. 

2489.  The  same  where  plaintifif  has  only  special  property. 

[Title.] 

We,  the  jury  in  this  action  find  for  the  plaintiff  that  he  is 
the  owner  of  a  special  interest  in  the  property  described  in 
the  complaint  herein  to-wit,  [describe  the  interest  with  legal 
certainty];  that  the  value  of  said  property  is dol- 
lars and  the  value  of  plaintiffs  special  interest  therein  is 

dollars  and  that  plaintiff  is  entitled  to  immediate 

possession  of  said  property  by  virtue  of  his  said  special  in- 
terest therein;  that  the  defendant  is  the  general  owner  of 
said  property  subject  to  plaintiff's  said  special  interest;  and 
we  assess  the  plaintiff's  damages  by  reason  of  the  taking  and 

withholding  of  said  property  at dollars. 

0 . . . .  P . . . . ,  Foreman. 

2490.  Verdict  in  replevin  for  defendant. 

[Title.] 

We,  the  jury  in  this  action,  find  for  the  defendant,  that  he 
is  entitled  to  a  return  of  the  property  described  in  the  com- 
plaint [or  describe  the  property]  and  assess  the  value  thereof  at 

the  sum  of dollars,  and  the  defendant's  damages  by 

reason  of  the  taking,  withholding  and  detention  of  the  same 
at  the  sum  of dollars. 

Dated ,19.. 

0 . . . .  P . . . . ,  Foreman. 

2491.  Verdict  for  plaintiff  in  replevin  (Iowa  Code  1897 

sec.  4175). 

[Title.] 

We,  the  jury  in  this  action,  find  for  the  plaintiff,  that 
he  is  the  absolute  owner  of  the  personal  property  described 
in  the  complaint  [or  that  he  has  a  qualified  ownership  in  the 
property  described  in  the  complaint  by  virtue  of  a  levy  there- 
on made  by  him  as  sheriff  under  an  execution  held  by  him 
against  the  property  of or  otherwise  briefly  describe 


"Forms  2492,  2493.]  1718  [Chapter  CXXXVII. 

the  qualified  title];  and  that  said  plaintiff  is  entitled  to  the 
immediate  possession  of  said  property;  that  said  property  is 

of  the  value  of dollars  [or  is  of  the  following  value; 

here  name  each  article  and  give  its  value  separately];  that  the 
plaintiff's  special  interest  in  said  property  is  of  the  value  of 

dollars;  and  we  assess  the  plaintiff's  damages  for 

the  wrongful  detention  of  said  property  at dollars. 

Dated 19.. 

0....P.    ,..,  Foreman. 

2492.  General  verdict  for  plaintiff  in  ejectment  (Wis. 

Stats.  1913  sec.  3084). 

[Title.] 

We,  the  jury  in  this  action,  find  for  the  plaintiffs,  that  they 
are  the  owners  of  an  estate  in  fee  simple  [or  an  estate  for  the 
life  of  A. . . .  B. . . .  or  otherwise  specify  the  particular  estate 
and  its  duration]  in  the  lands  described  in  the  complaint  and 
have  a  right  to  recover  the  possession  of  the  same,  and  we  as- 
sess their  damages  for  the  unlawful  withholding  thereof  at 

the  sum  of dollars,  and  [if  special  damage  be  claimed 

in  the  complaint]  we  further  assess  the  plaintiff's  damages  for 
waste  committed  thereon  at  the  sum  of dollars. 

Dated ,19.. 

0. . . .  P. . . .,  Foreman. 

[//  the  plaintiff  had  title  at  the  time  the  action  was  com- 
menced which  has  terminated  pending  the  action  the  verdict 
should  state  both  facts  and  date  of  the  termination  and  assess 
damages  only  to  that  date.] 

2493.  Separate  verdict  in  ejectment  for  defendant's  im- 

provements, when  plaintiff  recovers  the  land 
(Wis.  Stats.  1913  sec.  3097). 

[Title.] 

We,  the  jury  in  this  action,  find  the  defendant  entitled 
to  recover,  upon  his  counter-claim  herein,  the  value  of  the 
improvements  made  and  taxes  paid  by  him  upon  the  said 

premises  and  assess  the  amount  thereof  at dollars. 

0....    P ,   Foreman. 

[This  is  to  be  returned  with  the  general  verdict  for  the  plain- 
tiff but  separate  therefrom.] 


Chapter  CXXXVIL]  1719  [Forms  2494-2496. 

2494.  The  same,  when  a  part  only  of  the  plaintiffs  re- 

cover (Wis.  Stats.  1913  sec.  3084). 

[Title.] 

We,  the  jury  in  this  action,  find  for  the  plaintiffs  A. . . . 
B . . . .  and  C . . . .  D . . . .  that  they  are  the  owners,  etc. 
[proceed  as  in  last  preceding  form  to  the  assessment  of  dam- 
ages] and  we  assess  said  last  named  plaintifY's  damages 
[proceed  as  in  last  preceding  form]  and  as  to  the  plaintiffs 
E . . . .  F and  G H . . . .  we  find  for  the  defendants. 

Dated 19.. 

0 . . . .   P Foreman. 

2495.  The  same,  for  a  part  of  the  premises  only  (Wis. 

Stats.  1913  sec.  3084). 

[Title.] 

We,  the  jury  in  this  action,  find  for  the  plaintiff  that  he  is 
the  owner  in  fee  simple  [or  otherwise  describe  the  estate  as  in 
preceding  forms]  in  and  to  a  part  of  the  premises  described 
in  the  complaint,  to-wit  [here  describe  the  part  recovered], 
and  M^e  assess  his  damages  [as  in  preceding  forms],  and  as  to 
the  remainder  of  the  premises  described  in  the  complaint  we 
find  for  the  defendant. 

Dated 19.. 

0 . . . .  P. . . .,  Foreman. 

2496.  Special  verdict  (Wis.  Stats.  1913  sec.  2858). » 

[Title.] 

We,  the  jury  in  this  action,  find  the  following  special 
verdict  in  said  action : 

Question  1.     [Insert  question.] 

Answer.    [Insert  answer.] 

Question  2.     [Insert  question.] 

Answer.     [Insert  answer.] 

[Proceed  in  the  same  manner  with  all  of  the  questions.] 

Dated ,19.. 

0....  P. . . .,  Foreman. 

•  In  case  a  special  verdict  be  de-  objection  and  exception  be  taken, 

manded  it  is  improper  to  submit  Ward  v.  C.  M.  &  St.  P.  Ry.  Co., 

a    £?encral    verdict    in    connection  102  Wis.  215. 
therewith!,  and  erroneous  if  proper 


Forms  2497,  2498.]  1720  [Chapter  CXXXVII. 

2497.  General  verdict  with  findings  on  particular  ques- 

tions (Wis.  Stats.  1913  sec.  2858). 

[Title.] 

We,  the  jury  in  this  action,  find  for  the  plaintiff  and  assess 

his  damages  at dollars  [or  find  for  the  defendant] 

and  we  further  find  in  answer  to  questions  submitted   by 
the  court  as  follows : 

Question  1.    [Insert  question.] 

Answer.    [Insert  answer.] 

[Proceed  as  above  with  remaining  questions.] 

Date ,19.. 

0 P ,  Foreman. 

2498.  Verdict  in  milldam  action  (Wis.  Stats.  1913  sec. 

3381). 

[Title.] 

We,  the  jury  in  this  action,  find  the  following  special  ver- 
dict in  said  action: 

Question  1.  Is  the  plaintiff  entitled  to  recover  damages 
for  the  maintenance  of  the  dam  described  in  the  complaint? 

Answer 

Question  2.  If  yes,  then  what  is  the  amount  of  such  dam- 
ages for  the  period  commencing  [three  years  prior  to  the  com- 
mencement of  this  action  down  to  the  present  time]  [or, 
when  plaintiff's  title  accrued  within  said  three  years,  Jan.  1st, 
19 . .  {date  when  title  accrued)  to  the  present  time]? 

Answer 

Question  3.  [//  plaintiff  alleges  that  the  dam  is  of  unreason- 
able height]:  Is  the  said  dam  raised  to  an  unreasonable 
height? 

Answer 

Question  4,  If  you  answer  the  last  preceding  question 
"Yes"  then  state  how  much  the  dam  should  be  lowered. 

Answer 

Question  5.  [//  plaintiff  alleges  that  dam  ought  not  to  be 
closed  during  whole  year]:  Should  said  dam  be  kept  up,  or 
closed,  during  the  whole  year? 

Answer 

Question  6.  If  you  answer  last  preceding  question  "No" 
then  state  what  part  of  the  year  it  shall  be  left  open? 

Answer 


Chapter  CXXXVIL]  1721  [Form  2499. 

Question  7.  If  you  have  answered  the  first  question  in 
this  verdict  in  the  affirmative,  then  state  what  sums  paid  an- 
nually to  the  plaintiff  will  be  a  just  and  reasonable  compensa- 
tion for  the  damages  which  will  be  hereafter  occasioned  by 
the  dam  so  long  as  it  is  used  in  conformity  with  this  verdict? 

Answer 

Question  8.  If  you  have  answered  the  first  question  in 
this  verdict  in  the  affirmative  then  state  what  gross  sum 
would  be  a  just  and  reasonable  compensation  for  all  the  dam- 
ages hereafter  to  be  occasioned  by  such  use  of  the  dam  and 
for  the  right  of  maintaining  and  using  the  same  forever  in 
the  manner  aforesaid. 

Answer 

O P . . . . ,  Foreman. 

2499.    Notice  of  motion  for  trial  of  issues  of  fact  in 
equitable  case,  or  issues  not  made  by  the  plead- 
ings, before  a  jury.* 
[Title.] 

Take  notice  that  upon  the  pleadings  in  this  action  and 
upon  the  proceedings  on  file  [and  upon  the  affidavit  of  G. . . . 

H . . . .  herewith  served]  the  undersigned  will  move  the 

court  at on  the  ....  day  of ,  19.  .,  at  .... 

o'clock  A.  M.,  or  as  soon  thereafter  as  counsel  can  be  heard, 
for  an  order  that  the  following  issues  be  submitted  to  a  jury 
for  trial,  viz. : 

I.     [State  the  issue  in  succinct  form.] 

[Date.] 

G....  H...., 

[Address.]  Attorney  for  Plaintiff. 

*  The  court  may  in  its  discretion  controverted  questions  of  fact,  in- 
order  issues  in  equitable  actions  to  terrogatories  being  framed  and  ap- 
be  tried  by  a  jury,   also  issues  of  proved  by  the  court.     Ariz.  R.  S. 
fact   not   made   by  the   pleadings.  1913  sec.  509,  542.     In  the  follow- 
Wis.   Stats.   1913  sec.  2841,  2843.  ing  states  any  issue  may  by  order 
In  equitable  actions  the  verdict  is  of  the  court   be  tried   by  a  jury 
advisory  only  and  the  court  may  Ark.  Dig.  of  Stats.  1904  sec.  5995 
order  a  new  trial  or  find  the  facts  6171;  Cal.  C.  C.  P.  1906  sec,  592 
himself.     Stahl  v.  Golzinberger  45  Colo.    Code   Ann.    1911    sec.    190 
Wis.  121;  Welch  v.Tippery  66  Neb.  Kans.  Gen.  Stats.  1909  sec.  5873 
604:  92  N.  W.  582.    In  Arizona  if  a  Mont.  Rev.  Codes  1907  sec.  6724 
jury  be  demanded  by  either  party  Minn.  Gen.  Stats.  1913  sec.  7792 
in  actions  for  equitable  rehef,  the  Mo.  R.  S.  1909  sec.  1969;  Neb.  R.  S. 
court  shall  submit  to  the  jury  all  1913  sec.  7844;  N.  Dak.  Rev.  Codes 


Forms  2500-2502.]  1722  [Chapter  CXXXVIL 

2500.  Verdict  in  action  for  cutting  timber  where  de- 

fendant claims  cutting  was  by  mistake  (Wis. 

Stats.  1913  sec.  4269). 
[Title.] 

We,  the  jury  in  this  action,  find  generally  for  the  plaintiff, 
and  we  further  find : 

I.  That  the  cutting  of  timber  set  forth  in  the  complaint 
was  [or  was  not]  done  by  mistake  as  alleged  by  the  defend- 
ant. 

II.  That  the  true  value  of  such  timber  when  so  cut  was 
the  sum  of dollars. 

III.  That  the  highest  market  value  of  the  same  [or  of  the 
lumber  manufactured  therefrom]  while  in  defendant's  pos- 
session before  this  trial  is  the  sum  of dollars. 

L. . . .  M ,  Foreman. 

2501.  Order  for  trial  of  issues  in  equitable  action  before 

jury. 
[Title.]  [Caption  as  in  Form  8.] 

The  motion  of  the  plaintiff  herein  for  an  order  submitting 
certain  issues  to  a  jury  for  trial  having  come  on  to  be  heard 
upon  the  pleadings  herein  [and  the  affidavit  of  G . . . .  H . . . .  ] 
and  [state  any  further  affidavits  or  papers  used  on  the  motion], 
after  hearing  G. . . .  H. . . .,  Esq.,  for  the  motion  and  J. . . . 
K. . . .,  Esq.,  in  opposition. 

ORDERED  that  the  following  issue  between  the  parties 
be  tried  by  a  jury  at  the  ....  term  of  the  said  court  to  be 

held  at on  the  ....  day  of 19 . .  [or  at  the 

present  term  of  this  court],  viz.  : 

[State  issue  clearly  and  succinctly]. 

By  the  Court: 

0 P Judge. 

2502.  Notice  of  motion  for  a  special  jury.* 

[Title.] 
Take  notice,  that  upon  the  affidavit  of  which  a  copy  is 

1905  sec.  7009;  S.  Dak.  C.  C.  P.  *  There  were  formerly  provisions 

1908  sec.  244;  Okla.  Comp.  Laws  in  both  "Wisconsin  and  Minnesota 

1909  sec.  5786;  Tex.  Civ.  .Stats.  giving  any  party  the  right  to  trial 
A.nn.  1913  art.  1948;  Utah  Comp.  before  a  special  or  struck  jury  on 
Laws  1907  sec.  3128;  Wyo.  Comp.  demand,  but  these  provisions  have 
Stats.  1910  sec.  4454.  beenrepealed.  The  special  or  struck 


Chapter  CXXXVIL]  1723  [Form  2502. 

herewith  served  upon  you,  and  upon  the  pleadings  [specify 
any  other  papers  relied  on]  in  this  action,  the  undersigned  will 
move  the  court,  at  a  special  term  to  be  held  at  the  court 

house  in ,  in  the  county  of ,  on  the  ....  day 

of ,  19. .,  at o'clock  in  the  forenoon  of  that 

day,  or  as  soon  thereafter  as  counsel  can  be  heard,  for  an  or- 
der that  a  special  jury  be  struck  for  the  trial  of  this  action, 
and  for  such  other  or  further  relief  as  may  be  proper, 
[Date.] 

L....  M. ..., 

To ,  Plaintiff's  Attorney. 

Attorney  for 

jury  had  its  origin  at  common  law  granted  now  in  the  absence  of  direct 

and  was  granted   in   cases  which  statutory  provision.     See  a  discus- 

W3re   shown    to   be    of   too   great  sion  of  the  subject  in  Lommen  vs. 

difficulty  for  submission  to  ordinary  M.  G.  Co.,  65  Minn  196;  68  N.  W. 

freeholders.    Such  a  jury  is  rarely  53;  see  also  24  eye.  96. 


CHAPTER  CXXXVIII. 


REFERENCES  AND  TRIAL  BY  REFEREES. 


2503.  AfTidavit  by  plaintiff  to  move 

for  reference  of  an  action 
involving  a  long  account. 

2504.  The  same,  by  defendant. 

2505.  Notice   of   motion    to   refer 

cause. 

2506.  Order   to    show   cause   why 

reference  should  not  be 
ordered. 

2507.  Affidavit  to  oppose  motion, 

denying  account. 

2508.  Affidavit  to  oppose  motion, 

where  fraud  is  set  up. 

2509.  Affidavit  to  oppose  motion, 

where  there  are  difficult 
questions  of  law. 

2510.  Stipulation  to  refer. 

2511.  Order  referring  the  cause  on 

motion. 

2512.  Order    referring    the    cause, 

without  motion. 

2513.  Order     of     reference     upon 

written  stipulation. 

2514.  Order  of  reference.     (Iowa). 

2515.  Order  of   reference   to   take 

testimony  as  to  the  value 
of  use  and  occupation 
in  action  for  specific  per- 
formance. 

2316.  Order  of  reference  to  take 
an  account  as  to  damages. 

'_!.j17.  Order  of  reference  to  take 
an  account  between  parties 
to  a  mortgage,  in  an 
action  to  redeem. 

2518.  Order   of   reference    for   ac- 

counting in  partnership 
cause. 

2519.  Order  of  reference  to  deter- 

mine priority  among 
creditors. 


2520.  Order  of  reference  to  take 

all    testimony  and  report 
to  the  court. 

2521.  Plaintiff's    account,     to    be 

presented  on  reference. 

2522.  Order  that  books  and  papers 

be  deposited  with  referee 
before  accounting. 

2523.  Oath  of  referee. 

2524.  Oath    of    referee.     (Minne- 

sota). 

2525.  Oath  of  referee.     (Iowa  and 

Nebraska). 
2.j26.  The  same.     (North  Dakota). 

2527.  The  same.     (South  Dakota). 

2528.  Appointment  of  first  meet- 

ing, by  referee. 

2529.  Notice  of  hearing  or  trial,  by 

party. 

2530.  Report    of    referee,    general 

form. 

2531.  Report  in  partnership  cause. 

2532.  Referee's  report  on  account- 

ing in  partnership  cause. 

2533.  Referee's   report   as   to   pri- 

ority of  creditors. 

2534.  Notice   of  claim   to  surplus 

in    foreclosure.     (Wiscon- 
sin). 

2535.  Affidavit    to   move   for   ref- 

erence of  claim  to  surplus 
in  foreclosure. 

2536.  Notice    of    motion    for    ref- 

erence   to    obtain    surplus 
moneys  on  foreclosure  sale. 

2537.  Order  of  reference  of  claims 

to  surplus  moneys. 

2538.  Referee's  report  thereon. 

2539.  Notice   of   motion   for   pay- 

ment. 


Chapter  CXXXVIII. 


1725 


[Form  2503. 


2540.  Order    distributing    surplus 

moneys  on  foreclosure. 

2541.  Notice    of    filing    report    of 

referee. 

2542.  Exceptions  to  report. 

2543.  Motion  to  confirm  report  of 

referee  and  for  judgment. 


2544.  Motion  for  further  report. 

2545.  Motion  to  set  aside  report 

and  for  a  new  trial. 

2546.  Order     confinning,     setting 

a?ide,    or    amending    ref- 
eree's report. 


While  the  statutes  of  the  various  states  differ  in  detail  with 
regard  to  the  ordering  of  references,  they  substantially  agree 
upon  the  following  general  propositions.  A  reference  may  be 
ordered  to  try  any  or  all  of  the  issues  upon  consent  of  the 
parties;  it  may  also  be  compulsorily  ordered  (1)  where  it 
appears  that  a  long  account  must  necessarily  be  examined 
upon  either  side,  (2)  where  the  taking  of  an  account  is  neces- 
sary for  the  information  of  the  court,  and  (3)  where  a  ques- 
tion of  fact  other  than  upon  the  pleadings  arises  in  the  ac- 
tion.^ 

2503.    Affidavit  by  plaintiff  to  move  for  reference  of  an 
action  involving  a  long  account.^ 

[Title.] 
[Venue.] 

A . . . .  B . . . . ,  the  plaintiff  in  the  above-entitled  action, 
being  duly  sworn,  says: 

That  said  action  is  brought  to  recover  [here  briefly  desig- 
nate nature  of  cause  of  action,  as  for  instance]:  for  goods, 
wares  and  merchandise  sold  and  delivered  by  plaintiff  to  de- 


i\Vis  Stats.  1913  sec.  28644 
Oregon  Laws  1910  sec.  160,  161; 
Utah  Comp.  Laws  1907  sec.  3172, 
3173;  Wash.  Rem.  and  Bal.  Code 
1910  ser.  369,  370;  Mo.  R.  S.  1909 
sec.  1995,  1996,  2013;  N.  Dak.  Rev. 
Codes  1905  ser.  7046,  7047;  S.  Dak. 
C.  C.  P.  1908  sec.  281,  282.  In  the 
following  states  the  report  of  the 
referees  upon  the  whole  issue  stands 
as  the  decision  of  the  court,  and 
judgment  may  be  entered  thereon 
in  the  same  manner  as  if  the  action 
had  been  tried  by  the  court;  when 
the  referee  is  to  report  the  facts,  the 
report  has  the  effect  of  a  special 
verdict;  Ariz.  R.  S.  1913  sec.  664, 
665,  667;  Cal.  C.  C.  P.   1906  sec. 


639,  644,  645;  Colo.  Code  Ann. 
1911  sec.  222,  223,  231;  Idaho  Rev. 
Codes  1908,  sec.  4414,  4415,  4421; 
Iowa  Ann.  Code  1897  sec.  3734, 
3735,  3740,  3741;  Kans.  Gen.  Stats. 
1909  sec.  .5892,  5893,  5894;  Mont. 
Rev.  Codes  1907  sec.  6771,  6772, 
6781;  Minn.  Gen.  Stats.  1913  sec. 
7820,  7821,  7823;  Neb.  R.  S.  1913 
sec.  7867,  7868,  7869:  Okla. 
Comp.  Laws  1909  sec  5810,  5811, 
,5812;  Wvo.  Comp.  Stats.  1910 
sec.  4520,  4521,  4523. 

2  The  affidavit  should  be  made  by 
a  party  or  excuse  be  stated  in  it. 
Wood.  V.  Crowner,  4  Hill  548. 
Joinder  of  issue  should  be  stated. 
Jansen  v.  Tappen,  3  Cowen  34. 


Form  2504.]  1726  [Chapter  CXXXVIII. 

fendant,  at  his  request,  at  various  times  between  the  .... 

day  of ,  19. .,  and  the day  of 19. .,  as 

more  fully  appears  from  the  complaint  herein. 

That  issue  was  joined  on  [or,  as  of]  the  ....  day  of 

last,  by  the  service  of  defendant's  answer,  setting  up  [here 
designate  the  defenses, — e.  g.,  thus]  payment  as  to  part,  and  a 
counter-claim  arising  out  of  several  items  of  services  alleged 
to  have  been  rendered  by  him  to  the  plaintiff. 

That  the  trial  of  the  aforesaid  issue  will  require  the  ex- 
amination of  a  long  account  on  the  side  of  the  plaintiff  [or, 
defendant,  or,  both  parties],  consisting  of  at  least  .... 
items  of  charges  and  [credits]  of  the  aforesaid  [goods  and 
services]  of  various  dates. 

Xx  •  •  •  •    J^  •  •  •  • 

[Jurat.] 

2504.    The  same,  by  defendant. 

[Title.] 
[Venue.] 

C . . . .  D . . .  being  first  duly  sworn  says  that  he  is  the  de- 
fendant in  this  action;  that  the  same  is  brought  by  the 
plaintiff  on  an  account  for  goods,  wares  and  merchandise,  al- 
leged to  have  been  heretofore  sold  and  delivered  to  this  de- 
fendant; that  issue  was  joined  herein  on  the   ....  day  of 

,  19. .,  by  the  service  of  the  defendant's  answer,  in 

which  the  defendant  denies  the  sale  and  delivery  of  a  part 
of  the  said  goods  and  merchandise  and  alleges  payment  as  to 
the  balance  thereof  and  also  alleges  as  a  counter-claim  that 
the  plaintiff  is  indebted  to  this  defendant  upon  an  account 
for  work,  labor  and  services  rendered. 

That  by  the  bill  of  particulars  of  the  plaintiff's  claim  here- 
tofore served  herein,  the  same  contains  ....  items,  all  of 
which  [or  state  how  many]  this  defendant,  by  his  answer, 
controverts. 

That  the  items  of  this  defendant's  counter-claim  embrace 
an  account  of  ....  separate  items,  and  that  the  trial  of  this 
issue  will  require  the  examination  of  a  long  account,  namely, 
the  said  account  of  the  said  plaintiff,  and  also  of  this  afTiant 
as  aforesaid. 


Chapter  CXXXVIIL]  1727  [Forms  2505-2507. 

That  no  difficult  questions  of  law  are,  to  the  best  of  this 
affiant's  knowledge  and  belief,  involved  in  the  said  issues  in 
this  action. 

C...  D.... 
[Jurat.] 

2505.  Notice  of  motion  to  refer  cause. 

[Title  of  the  cause.] 

Please  take  notice,  that  on  [designate  papers],  the  under- 
signed will  move  the  court,  at  a  ... .  term  to  be  held  at , 

on  the  ....  day  of ,  19 . . ,  at  ....  o'clock  in  the  .... 

noon,  or  as  soon  thereafter  as  counsel  can  be  heard,  that  this 
action  be  referred  to  a  referee  [or  to  three  referees]  to  hear, 
try  and  determine  the  same. 

[Date.] 

L....M 

To  0 P ,  Esq.,  Plaintiff's  Attorney. 

Defendant's  Attorney. 

2506.  Order  to  show  cause  why  reference  should  not  be 

ordered. 

[Title.] 

Upon  the  affidavit  of  A B ,  and  on  reading  the 

pleadings  on  file  herein,  and  on  motion  of  L....  M...., 
Esq.,  attorney  for  defendant, 

ORDERED,  That  the herein  show  cause,  at  the 

court  house  in  the  city  of in  said  county,  on  the  .... 

day  of ,  19 . . ,  at  the  opening  of  court  on  that  day,  or  as 

soon  thereafter  as  counsel  can  be  heard,  why  the  order  of  ref- 
erence applied  for  herein  should  not  be  granted; 

That  a  copy  of  this  order  and  said  affidavit  be  served  on  the 
plaintiff's  attorney,  at  least  ....  hours  before  the  time  fixed 
for  the  hearing  of  such  motion. 

0....  P...., 
Circuit  Judge. 

2507.  Affidavit  to  oppose  motion,  denying  account. 

[Title.] 
[Venue.] 

C . . . .  D . . . .  being  duly  sworn  says  that  he  is  the  de- 
fendant in  this  action  and  that  the  issue  joined  herein  will  not 


Forms  2508,  2509.]  1728  [Chapter  CXXXVIII. 

require  the  examination  of  a  long  account  within  the  mean- 
ing of  the  statute. 

That  this  action  is  brought  to  recover  for  a  bill  of  goods 
sold  by  plaintiff  to  defendant;  and  that  all  of  said  goods 
were  sold  at  one  time,  and  as  one  transaction,  and  the  al- 
leged credit  is  a  payment  made  by  defendant  at  said  time, 
and  then  deducted  from  the  amount  to  be  due  from  defend- 
ant to  the  plaintiff;  and  there  are  no  other  items  of  charge  or 
credit  involved  in  the  issues  herein. 

C...    D... 
[Jurat] 

2508.  Affidavit  to  oppose  motion,  where  fraud  is  set  up. 

[Commencement  as  in  last  preceding  form]  that  this  action  is 
brought  upon  an  insurance  policy  alleged  to  have  been  made 
by  defendants;  and  that  the  only  items  of  account  are  the 
items  of  damage,  which  plaintifT  claims  he  has  sustained  by  a 
peril  insured  against. 

That  the  defence  [or,  one  of  the  defences]  set  up  by  the  de- 
fendants is  fraud  on  the  part  of  the  plaintiff,  in  [here  briefly 
disclose  it],  as  more  fully  appears  by  reference  to  their  answer 
herein. 

C...     D.... 
[Jurat.] 

2509.  Affidavit  to  oppose  motion,  where  there  are  diffi- 

cult questions  of  law.^ 

[Commencement  as  in  preceding  forms]  that  he  has  fully 
and  fairly  stated  the  case  in  this  cause  to  his  counsel  O . . . . 

P . . . . ,  who  resides  at  No , street,  in  the  city  of 

;  and  that  the  investigation  and  trial  of  the  issues  of 

fact  in  this  cause  will,  as  deponent  is  advised  by  said  counsel, 
after  such  statement,  and  believes,  require  the  decision  of 
difTicult  questions  of  law. 

That  [here  state,  unless  the  moving  affidavits  correctly  state  it 
the  nature  of  the  issue,  and  that]  the  following  will  be  insisted 
on  on  behalf  of  said  plaintiff  [here  briefly  state  deponent's 

» "Where  an  action  contains  im-  ferred  "to  take  an  account  for  the 

portant    issues    requiring    the    dis-  information  of  the  court."    Druse  v. 

cretion,  experience  and  judgment  Herter,  57  Wis.  644;  16  N.  W.  14. 
of  the  court  it  should  onlv  be  re- 


Chapter  CXXXVIIL]  1729  [Forms  2510-2512. 

points  of  law].  And  deponent  is  informed  and  believes  that 
the  defendant's  counsel  will  urge  [here  briefly  state  his  anti- 
cipated points];  which  points,  as  deponent  is  advised  by  his 
said  counsel,  are  material  to  the  cause,  and  are  difTicult, 
especially  in  their  application  to  the  facts  of  this  case. 

v<  •  •  •  •  U  •  •  •  • 

[Jurat.] 

2510.  Stipulation  to  refer. 

[Title.] 

It  is  hereby  stipulated  and  agreed  by  the  parties  to  this  ac- 
tion [that  the  right  of  trial  by  jury  be  waived,  and  thatl 

it  be  referred  to  R. . . .  F. . . .,  Esq.,  of ,  counsellor- 

at-law,  to  hear,  try  and  determine  the  issues  in  this  cause; 
and  that  an  order  may  be  entered  accordingly. 
[Date.] 

A B ,  Plaintiff's  Attorney. 

C . . , .  D . . . .,  Defendant's  Attorney. 

2511.  Order  referring  the  cause  on  motion. 

[Title.] 

On  reading  and  filing  [the  pleadings  and  the  affidavit  of 

G. . . ,  H. . . .],  and  on  motion  of  M N. . . .,  counsel  for 

defendant,  and  after  hearing  0....  P....,  counsel  for 
plaintiff  [or,  and  on  proof  of  service  of  notice  of  motion,  and 
no  one  appearing],  in  opposition: 

ORDERED,  that  it  be  referred  to  R F ,  Esq.,  of 

counsellor-at-law,  to  hear,  try  and  determine  the 

whole  issues  in  this  cause. 

[Date.]  By  the  Court: 

L M Judge. 

2512.  Order  referring  the  cause,  without  motion. 

[Title.] 

This  cause  coming  on  to  be  tried,  and  it  appearing  to  the 
satisfaction  of  the  court  that  it  will  require  the  examination 
of  a  long  account: 

ORDERED  [as  in  preceding  form]. 
109 


Forms  2513-2515.]  1730  [Chapter  CXXXVIII. 

2513.  Order  of  reference  upon  written  stipulation. 

[Title.] 

On  reading  and  filing  the  annexed  consent,  and  on  motion 
of  M N for  plaintiff  [or,  defendant]: 

ORDERED  [as  in  last  preceding  form], 

2514.  Order  of  reference  (Iowa). 

[Title.] 

[Commencement  as  in  preceding  forms  of  orders  of  reference, 
or  if  parties  have  orally  agreed  in  open  court]  the  parties  to  this 
action  having  orally  agreed  in  open  court  that  the  same  be  re- 
ferred to  the  person  [or  persons]  hereinafter  named  to  hear, 
try  and  determine  the  same, 

ORDERED  that  said  action  be  and  the  same  hereby  is  re- 
ferred to  R . . . .  F . . . ,  and  R . . . .  E . . . . ,  referees,  to  hear, 
try  and  determine  all  the  issues  therein  and  to  report  at 
this  [or  the  next]  term  of  this  court,  and  that  the  cause  be 
heard  at  upon  ten  day's  written  notice  [or  com- 
mencing on  the  ....  day  of ,  19 . .] 

[Date.] 

By  the  Court: 

L M ,  Judge. 

2515.  Order  of  reference  to  take  testimony  as  to  the 

value  of  use  and  occupation  in  action  for  speci- 
fic performance. 

[Title.]  [Caption  as  in  Form  8.] 
ORDERED,  after  hearing  counsel  for  the  plaintiffs  and  de- 
ferdants,  that  it  be  referred  to  R.  . . .  F. . . .,  Esq.,  to  take 
sucn  testimony  as  may  be  produced  before  him  by  either 
party  to  this  cause  in  relation  to  the  value  of  the  use  and  oc- 
cupacion,  by  C...  D ,  of  the  premises  [briefly  desig- 
nating them],  since  the   ....  day  of ,  19..,  and  the 

amounts  received  and  collected  by  C . . . .  D . . . . ,  or  which, 
with  reasonable  diligence,  might  have  been  received  and  col- 
lected for  the  same  since  said  day,  the  amounts  expended  by 
said  C . . . .  D . . . .  for  taxes,  assessments,  repairs,  or  other- 
wise, in  and  upon  said  premises  [and  also  in  relation  to  all 
policies  of  insurance  upon  said  premises,  and  as  to  any  ac- 
tions brought  upon  the  samel. 


Chapter  CXXXVIIL]  1731  [Forms  2516,  2517. 

And  it  is  further  ordered,  that  the  said  referee  report  said 
testimony  with  all  convenient  speed. 

2516.  Order  of  reference  to  take  an  account  as  to  dam- 

ages. 

[Title.]  [Caption  as  in  Form  8.] 

This  cause  coming  on  to  be  tried,  and  it  appearing  that  the 
taking  of  an  account  is  necessary  for  the  information  of  the 
court  before  judgment;  thereupon,  on  hearing  counsel  for 
the  respective  parties, 

ORDERED,  that  it  be  referred  to  R F ,  Esq.,  as 

sole  referee,  *  to  ascertain  and  report  [the  amount  of  wharf- 
age which  should  be  allowed  to  the  plaintiffs  for  the  breach 
of  the  covenant  by  the  defendants,  contained  in  the  grant 
mentioned  in  the  pleadings].  And  for  such  purpose  he  is  to 
ascertain  [etc.,  specifying  the  principles  on  which  the  account 
is  to  be  taken].  And  he  is  to  compute  the  interest  on  such 
amount,  and  state  the  same  in  his  report. 

And  upon  such  report  being  confirmed  according  to  the 
practice  of  this  court  either  party  may  bring  on  the  cause  for 
final  judgment. 

2517.  Order  of  reference  to  take  an  account  between  par- 

ties to  a  mortgage,  in  an  action  to  redeem. 

[As  in  preceding  form  to  the  *,  continuing]:  to  take  and  state 
an  account  between  the  several  parties  to  this  action,  in 
the  manner  and  under  the  directions  following,  to-wit: 

That  he  compute  the  amount  due  upon  the  bond  and 

mortgage  executed  by  the  plaintiff  to  the  defendant,  Z 

mentioned  in  the  complaint,  from  the  ....  day  of , 

19. .,  down  to  which  time  the  interest  appears  to  have  been 
paid. 

That  he  ascertain  [from  the  deeds  or  otherwise]  the  con- 
sideration paid  by  the  purchasers  and  defendants,  X . . . .  and 
Y. . . .,  from  the  said  Z. . . .,  at  the  auction  sale  of  the  said 

premises  made  on  the  ....  day  of ,  19. .  [proceeding 

to  state  the  mode  of  apportioning  the  redemption  money  among 
them]. 

That  he  open  and  state  an  account  with  each  of  such  de- 
fendants, in  which  he  is  to  allow  such  party  his  proportion  of 
the  mortgage  money  so  ascertained  as  aforesaid,  with  in- 


Forms  2518,  2519.]  1732  [Chapter  CXXXVIII. 

terest;  and  also  all  taxes  and  assessments  paid  by  him  or 
those  under  whom  he  claims,  upon  the  lots  now  held  by  him; 
and  also  any  sum  paid  for  necessary  repairs  upon  the  same, 
and  any  amount  expended  for  lasting  improvements,  with  in- 
terest on  such  sums  respectively;  and  that  he  state  and  charge 
such  party  with  any  rents  and  profits  of  such  lots  received  by 
him,  or  those  under  whom  he  claims,  or  by  any  one  on  his  or 
their  behalf,  or  which  could  have  been  received  without  wil- 
ful default,  with  interest. 

And  upon  the  coming  in  and  confirmation  of  the  report, 
the  action  may  be  brought  on  for  final  determination. 

2518.  Order  of  reference  for  accounting  in  partnership 

cause. 

[As  in  Form  2516  to  the  *,  continuing]:  to  take  and  state  an 
account  of  all  dealings  and  transactions  between  the  plaintiff 

and  defendant,  as  partners,  under  the  style  of  A B 

&  Co. ;  and  for  the  better  taking  and  stating  of  which  account 
the  parties  are  to  produce  before  the  said  referee,  under  oath, 
all  books,  deeds,  papers,  and  writings  in  their  cutody,  or 
under  their  control,  relating  thereto;  and  are  to  be  examined 
upon  interrogatories  or  otherwise,  as  the  said  referee  shall 
direct,  who,  in  taking  the  said  account,  is  to  make  all  just 
allowances  to  the  parties  as  between  themselves;  and  what, 
on  the  balance  of  the  said  account,  shall  appear  to  be  due 
from  either  party  to  the  other,  is  to  be  paid  as  the  said  referee 
shall  direct;  and  the  referee  is  at  liberty  to  state  and  report 
any  special  circumstances,  as  well  as  his  reasons  for  allow- 
ing or  disallowing  any  allowances  which  may  be  claimed. 

And  it  is  further  ordered,  that  the  question  of  costs,  as  well 
as  all  other  questions,  are  reserved  until  the  coming  in  of  the 
report  and  hearing  for  further  directions. 

2519.  Order  of  reference  to  determine  priority  among 

creditors. 
[As  in  Form  2516  to  the  *,  continuing]:  to  ascertain  and  re- 
port who  are  the  creditors  of  the  said  firm  of  A B 

&  Co.,  and  the  amounts  due  to  said  creditors  respectively, 
and  the  order  in  which  they  are  entitled  to  payment  out  of  the 

assets  of  the  said  firm  of  A B &  Co.  [in  conformity 

with  the  provisions  of  the  statute  of  limited  partnerships]. 


Chapter  CXXXVIIL]  1733  [Forms  2520,  2521. 

That  any  party  to  this  action,  or  any  person  claiming  to 
be  a  creditor  of  said  firm,  and  presenting  to  the  said  referee 
prima  facie  evidence  of  his  claim,  shall  have  the  right  to  con- 
test any  claim  preferred  by  any  other  creditor,  and  that 
testimony  may  be  taken  before  said  referee  on  the  part  of  the 
claimants  and  contestants.  That  the  said  referee  report  to 
this  court  the  names  of  the  creditors,  and  the  amounts  found 
by  him  to  be  due  to  each  respectively,  and  the  order  in  which 
they  are  entitled  to  payment;  and  that  in  case  any  of  said 
claims  be  contested,  the  said  referee  do  report  the  facts  rela- 
tive to  the  claim  so  contested,  and  the  grounds  of  objection 
alleged  by  the  contestant,  and  the  decision  of  the  said  referee 
thereupon. 

And  it  is  further  ordered,  that  on  the  coming  in  of  the  ref- 
eree's report,  any  party  to  this  action,  or  any  creditor  whose 
claim  is  allowed  by  the  referee,  may  apply  to  this  court  for  an 
order  for  the  fmal  distribution  of  the  balance  of  the  funds  in 
the  hands  of  the  receiver  herein,  among  the  creditors  of 
said  firm  as  ascertained  by  said  report,  or  by  the  order  of  the 
court  thereupon. 

And  it  is  further  ordered,  that  either  party,  ov  any  creditor, 
may  apply  to  this  court,  from  time  to  time,  for  futher  direc- 
tions in  the  premises. 

2520.  Order  of  reference  to  take  all  testimony  and  re- 

port to  the  court. 

[Title.]  [Caption  as  in  Form  8.] 

This  action  coming  on  for  trial,  after  hearing  G. . . .  H . . . ., 
Esq.,  for  the  plaintiff  and  J. . . .  K. . . .,  Esq.,  for  the  de- 
fendant, 

ORDERED,  that  it  be  referred  to  L M ,  Esq.,  as 

sole  referee  to  take  the  testimony  in  said  action  and  that  he 
report  the  same  to  this  court  with  all  convenient  speed. 

2521.  Plaintiff's  account,  to  be  presented  on  reference. 

[Title.] 

Statement  of  mutua'  accounts  between  the  plaintiff  and 
defendant  as  partners,  under  the  name  of  A. . . .  B. . . .  & 
Co.  [since  last  balance  and  settlement  had  between  them  on 
the  ....  day  of ,  19..] 

[Here  state  items,  e.  g.,  thus]: 


Form  2522.]  1734  [Chapter  CXXXVIII. 

A .  .  .  .  B  .  .  .  .   IN  ACCOUNT  WITH  Y  ....  Z  ....  IN  RESPECT  TO 
SAID  PARTNERSHIP  TRANSACTIONS. 

Dr.  Contra.                                   Cr. 

19....  19.... 

Jan.  15 — ^To  cash  received  at  Jan.  1. — By  balance  due  said 

that   date    on   partnership  A B on  settlement 

note  of  F P and  of  partnership  accounts  and 

not  entered  on  firm  books.$ transactions  up  to  date,  as 

May    5. — ^To    one-half  mer-  appears      by     partnership 

chandise    account    charged  books  of  account  deposited 

to  account  of  plaintiff,  as  with  referee $ 

appears  by  the  firm  books  Interest  thereon  to  date....$ 

deposited  with  referee $ Feb.  3. — By  cash,  etc $ 

[Venue.] 

A B . . . . ,    the    above-named    plaintiff,    being   duly 

sworn,  says  that  the  foregoing  account,  and  the  said  several 
accounts  and  entries  embraced  in  the  settlement  of  the  .... 
day  of ,  19 . .,  upon  the  partnership  books  herewith  de- 
posited with  the  referee  in  this  action,  including  both  debits 
and  credits,  are  correct,  according  to  the  best  of  deponent's 
knowledge,  information,  and  belief,  and  this  deponent  does 
not  know  of  any  error  or  omission  in  said  account  to  the 
prejudice  of  his  said  co-partner,  the  defendant. 

A B.... 

[Jurat] 

2522.    Order  that  books  and  papers  be  deposited  with 
referee  before  accounting. 

[Title.]                                                     [Caption  as  in  Form  8.] 
On  reading  and  filing  the  affidavit  of  A. . . .  B. . . .,  the 
plaintiff  [or,  on  the  petition  of  C D ,  or,  on  the  certi- 
ficate of  the  referee]  herein,  dated  the  ....  day  of , 

19 .  .,  and  on  motion  of  M N ,  for  the  plaintiff,  and 

on  hearing  0 P ,  for  the  defendant  [or,  and  on  proof 

of  due  service  of  notice  of  this  motion  and  no  one  appear- 
ing], in  opposition. 

ORDERED,  that  the  defendant  Y Z ,  within 

[four]  days  after  personal  service  hereof,  on  said  defendant,  or 
on  his  attorneys,  produce  before  the  said  referee,  under  oath, 
all  [here  specify  the  writings]  in  his  custody  or  power,  relating 
to  the  matters  in  question;  or,  in  default  thereof,  that,  on  the 
referee's  certificate  of  such  default,  an  attachment  issue  to 


Chapter  CXXXVIIL]  1735  [Forms  2523-2525. 

the  sheriff  of  the  county  of ,  to  take  the  said  defend- 
ant into  custody  and  bring  him  before  this  court  to  answer  for 
the  contempt. 

2523.  Oath  of  referee.* 

[Title.] 
[Venue.] 

I  [E. . . .  F. . . .],  having  been  appointed  referee  in  this  ac- 
tion [to  try  the  issues  in  this  action]  [or,  for  the  purposes  in 
said  order  mentioned],  do  solemnly  swear  [or,  affirm]  that  I 
will  faithfully  discharge  my  duties  as  such  referee  to  the  best 
of  my  ability,  so  help  me  God  [or  in  case  of  affirming  and  this 
I  do  under  the  pains  and  penalties  of  perjury]. 

E  F 

[Jurat] 

2524.  Oath  of  referee  (Minn.  Gen.  Stats.  1913  sec.  5734). 

]Title.] 
[Venue.] 

I,  E. . . .  F ,  do  swear  that  I  will  faithfully  and  justly 

perform  all  the  duties  of  the  office  and  trust  which  I  now  as- 
sume as  the  referee  appointed  in  this  action  to  hear  and 
determine  this  action  wherein  N . . . .  B . . . .  is  plaintiff  and 
C. . . .  D. .  .  .  defendant  and  make  a  just  and  true  report 
therein  to  the  best  of  my  ability,  so  help  me  God. 

E. . • .    F. ... 
[Jurat] 

2525.  Oath  of  referee  (Iowa  Code  18,97  sec.  3745;  Neb. 

R.  S.  1913  sec.  7874). 

[Title.] 
[Venue.] 

I,  R....  F....,  the  referee  [or  if  more  than  one.  We,  nam- 
ing them,  the  referees  appointed  in  this  action],  do  hereby 
solemnly  swear  that  I  [or  each  for  ourselves,  that  we]  will  well 

*  A  referee  should  take  an  oath  if  nothing  appears  in  the  record  to 
for  the  faithful  performance  of  his  the  contrary.    Gilbank  v.  Stephen- 
duties  whether  specifically  required  son,   31    "Wis.    592.      This  form   is 
by  statute  or  not.    It  will,  however,  doubtless  suITicient  in  Wisconsin, 
be  presumed  that  he  took  the  oath 


Forms  2526-2530.]  1736  [Chapter  CXXXVIII. 

and  faithfully  hear  and  examine  said  cause,  and  make  a 
just  and  true  report  therein  according  to  the  best  of  my  [or 
our]  understanding,  so  help  me  God. 

R  F 

[Jurat.] 

2526.  The  same  (N.  Dak.  Rev.  Codes  1905  sec.  7052). 

[Commencement  as  in  last  preceding  form]  will  well  and  truly 
hear  and  determine  the  facts  referred  as  aforesaid  and  true 
findings  render  according  to  the  evidence,  so  help  me  God. 

2527.  The  same  (S.  Dak.  C.  C.  P.  1908  sec.  284). 
[Commencement  as  in  last  preceding  form]  will  well  and 

truly  try  the  issues  in  said  action  [or  where  specific  questions 
are  referred,  will  well  and  truly  determine  the  questions  re- 
ferred] and  make  a  just  and  true  report  according  to  the  best 
of  my  [or  our]  knowledge  and  understanding,  so  help  me  God. 

2528.  Appointment  of  first  meeting,  by  referee. 

[Title.] 

The  undersigned  referee[s]  herein,  hereby  appoint  the 

day  of next,  at  ....  o'clock  in  the  ....  noon,  at  the 

office  of ,  No , street,  in  the  city  of , 

for  the  trial  of  this  action. 

[Date.]  R F Referee. 

2529.  Notice  of  hearing  or  trial,  by  party. 

[Title.] 

Take  notice,  that  this  action  will  be  brought  to  a  hearing 

before  R .  . . .  F , . . . ,  referee  herein,  at  his  office  No , 

street,  in  the  city  of ,  on  the day  of 

next,  at  ....  o'clock  in  the  ....  noon. 

[Date.] 

A....  B...., 

[Address.]  Plaintiff's  Attorney. 

2530.  Report  of  referee,  general  form. 

To  the Court  for County: 

Pursuant  to  the  order  of  reference  made  in  this  action  on 
the  ....  day  of ,  19 . .,  I,  the  undersigned,  as  such  ref- 


Chapter  CXXXVIIL]  1737  [Form  2531. 

eree,  respectfully  report  that  having  taken  the  oath  required 

by  law  as  such  referee,  I  appointed  the  ....  day  of , 

19 . .,  as  the  time,  and  my  office  in  the  city  of ,  as  the 

place,  for  the  trial  of  said  action,  and  duly  gave  each  party 
notice  of  the  time  and  place  of  such  trial. 

That  on  said  day  the  trial  was  commenced  and  then  con- 
tinued from  day  to  day  until  the  ....  day  of   ,  on 

which  it  concluded.  A....  B....,  Esq.,  appearing  for  the 
plaintiff  and  C . . . .  D . . . .,  Esq.,  for  the  defendant. 

[That  upon  the  opening  of  the  case  the  defendant  moved  to 
dismiss  the  action  on  the  ground  that  the  complaint  stated  no 
cause  of  action,  which  motion  I  denied  and  to  which  ruling 
the  defendant  excepted.] 

[That,  thereupon  the  plaintifT  moved  for  leave  to  amend  his 
complaint,  which  leave  was  granted,  and  the  defendant  ex- 
cepted thereto  and  a  copy  of  said  amendment  is  hereto  at- 
tached.] 

The  testimony  taken  before  me  is  hereto  annexed,  marked 
exhibit  A,  and  made  part  of  this  report,  and  the  exceptions 
and  rulings  therein  are  stated  in  said  evidence,  as  they  were 
taken. 

And  I  further  report  that  after  argument  of  counsel,  be- 
ing now  fully  advised  in  the  premises,  I  hereby  make  and 
report  the  following  findings  of  fact  in  said  action : 

I.  [Here  state  facts  found  separately  as  in  a  finding  by 
the  court.] 

And  as  conclusions  of  law  I  find  as  follows: 

I.     [Here  state  legal  conclusions  separately.] 

And  that  the  plaintiff  is  entitled  to  judgment  as  follows 
[here  state  judgment  which  should  follow  findings.] 

[Date.] 

Respectfully  submitted, 

[Attach  statement  of  fees.]  M. . , .  N ,  Referee. 

2531.    Report  in  partnership  cause. 

[Commencement  as  in  last  preceding  form.] 
I  find,  as  Conclusions  of  Fact: 

I.     That  from  the  ....  day  of ,  19, .,  to  the'. . . . 

day  of [when  this  action  was  commenced],  the  parties 

hereto  were  partners  in  the  business  of ,  at 


Foim  2532.]  1738  [Chapter  CXXXVIII. 

[under  articles  of  agreement  set  forth  in  the  complaint 
herein]. 

II.     That  the  defendant  in  the  month  of took  ex- 
clusive possession  of  the  partnership  assets  and  books,  and 
then,  and  ever  since,  prevented  the  plaintiff  from  having  free 
access  thereto,  and  obstructed  his  use  and  control  thereof. 
I  find,  as  Conclusions  of  Law: 

I.  That  the  plaintiff  is  entitled  to  a  judgment  declaring 

said  partnership  dissolved  as  of  the  ....    day    of 

19.. 

II.  That  the  plaintiff  is  entitled  to  an  accounting  with 
the  defendant  in  respect  to  the  partnership  dealings,  and  the 
use  made  of  the  partnership  property  by  the  defendant. 

III.  That  on  such  accounting  the  plaintiff  is  entitled  to 
have  allowed  to  him  [here  set  forth  the  principles  on  which  the 
accounting  should  be  kiken]. 

[Date.] 

M. ...  N. ...,  Referee. 

2532.    Referee's  report  on  accounting  in  partnership 
cause. 

[Title.] 

To  the court  of 

Pursuant  to  an  order  of  this  court,  in  this  action,  dated  the 

....  day  of ,  19 . . ;  I,  the  undersigned  referee  report:* 

That  having  been  attended  by  the  attorneys  for  the  several 
parties  who  appeared  in  this  action,  I  proceeded  to  a  hearing 
of  the  matter  so  referred.  I  further  report,  that  on  such 
hearing,  the  books,  deeds,  papers,  and  vouchers  of  the  said 
partnership  having  been  produced  before  me,  the  defendant 
rendered  his  [or,  both  parties  rendered  their  respective]  ac- 
counts, which  are  hereto  annexed,  and  marked    Schedule  A. 

II.  That  I  examined  said  defendant,  and  also  X.... 
Y....,  concerning  the  transactions  aforesaid,  and  adjusted 
a  mutual  account  between  the  plaintiff  and  defendant,  mak- 
ing therein  all  just  allowances,  and  striking  a  balance  which 
shows  what  appears  to  be  due  from  either  party  to  the  other, 
whi'.h  said  account  is  hereto  annexed  and  marked  Schedule  B. 

III.  That  said  defendant  owes  to  said  partnership,  at 
this  date,  the  sum  of dollars,  with  interest  from  the 


Chapter  CXXXVIIL]  1739  [Form  2533. 

* . . .  day  of ,  19. .,  at  the  rate  of  ....  per  cent,  per 

annum,  amounting  to dollars  which  sum  I  have  al- 
lowed. 

IV.  That  the  balance  shown  by  said  Schedule  B,  after  de- 
fendant has  made  good  to  said  partnership  said  sum,  belongs 
to  plaintiff  and  defendant  in  equal  shares  [or,  in  the  follow- 
ing proportions,  stating  them], 

[Date.] 

0....  P Referee. 

2533.    Referee's  report  as  to  priority  of  creditors. 

[As  in  preceding  form,  to  the  *,  continuing]: 

That  I  have  been  attended  upon  such  reference  by  counsel 
for  the  plaintiff  and  for  the  defendants,  and  for  M . . . . 
N . . . .  and  0 . . . .  P . . . .,  creditors  of  said  firm  of  Y . . . . 
Z &  Co. 

That  upon  being  served  with  a  copy  of  the  said  order,  I 
caused  notice  to  be  published  [twice  a  week,  for  three  weeks, 
in  two  daily  newspapers  of  the  city  of  New  York,  one  pub- 
lished in  the  morning  and  one  published  in  the  afternoon], 
requiring  all  persons  having  any  claim  against  the  said  firm, 
to  produce  and  prove  the  same  before  me  at  a  place  in  said 
city,  and  by  a  time  therein  specified ;  copies  of  which  notice, 
with  affidavits  of  the  publication  thereof,  are  hereto  annexed, 
marked  Schedule  No.  1  and  Schedule  No.  2. 

That  I  also  obtained  from  the  defendant,  W....  X....,  a 
list  of  the  outstanding  creditors  of  the  said  firm,  made  up 
by  him  while  acting  as  assignee  thereof,  and  which  he 
testified  was  correct,  to  the  best  of  his  knowledge,  informa- 
tion, and  belief;  and  I  caused  duplicates  of  the  said  notice  to 
be  served  upon  all  of  such  creditors,  either  personally  or  by 
being  left  at  their  places  of  business,  or  when  such  creditors 
were  a  firm  now  dissolved,  to  be  served  as  aforesaid  upon  one 
of  the  members  of  such  creditor-firm. 

II.  I  further  report,  that  the  creditors  of  the  said  firm  of 
Y. . . .  Z , , . .  &  Co.,  and  the  amounts  at  the  date  of  this  my 
report,  found  due  to  them,  respectively,  are  as  follows 
[designating  names  and  amounts]. 

III.  I  further  report,  that  of  the  said  creditors,  M.... 
N . . . .  above  mentioned,  is  entitled  to  be  preferred  to  all  the 
others  to  the  extent  of dollars,  being  the  amount 


Form  2534.]  1740  [Chapter  CXXXVIII. 

[specifying  nature  of  claim  and  grounds  of  preference].    That 

except  as  to  the  said  sum  of dollars,  all  the  said 

creditors,  including  the  said  M . . . .  N . . . . ,  are  entitled  to  be 
paid  ratably  and  proportionably  out  of  the  assets  of  the  firm 
of  Y Z &  Co.,  and  that  neither  ought  to  be  post- 
poned to  any  other  in  whole  or  in  part,  except  as  aforesaid. 
IV.  I  further  report,  that  one  and  one  only  of  the  said 
claims  is  contested  by  either  party,  or  by  any  creditor,  name- 
ly, the  said  claim  of  0 ... .  P . . . . ;  that  the  facts  relative  to 
the  said  claim  are  as  follows  [stating  the  facts,  and  continu- 
ing]; and  that  I  found  the  facts  in  respect  thereto  to  be  as 
above  stated  and  decided,  and  do  report  that  by  virtue  of  the 
facts  above  stated,  the  said  O . . . .  P. . . .  has  a  valid  claim 
against  the  said  Y. . . .  Z. . . .  &  Co.,  for  the  amount  above 
seventhly  mentioned  in  the  second  article  of  this  my  report, 

being  the  sum  of dollars,  with  interest  thereon  from 

the  said  ....  day  of 19 . . 


2534.    Notice  of  claim  to  surplus  in  foreclosure  (Wis. 
circuit  court  rule  XXV  and  sub.  4). 

[Title  of  the  cause.] 

Take  notice,  that  the  undersigned  is  entitled  to  the  sur- 
plus moneys,  or  a  part  thereof,  arising  on  the  sale  made  in 

this  action,  on  the  ....  day  of ,  instant  [here  state  the 

nature  and  extent  of  the  claim, — e.  g.,  thus]:    The  claim  of  the 

undersigned  is  for    dollars,   and  interest  thereon, 

from  the  ....  day  of ,  19 .  . ,  by  virtue  of  a  lien  under 

a  judgment  against  [or,  mortgage  given  by]  the  defendant 
Y . . . .  Z . , . .,  while  the  said  Y . . . .  Z . . .  .  was  the  owner  of 
the  equity  of  redemption  in  the  mortgaged  premises,  and 
before  the  commencement  of  this  action  [or,  by  virtue  of  his 
being  the  owner  of  the  equity  of  redemption  in  the  mort- 
gaged premises],  which  lien  is  next  in  priority  after  the  mort- 
gage of  the  plaintiff  in  this  action. 

[Date.] 

[Signature.] 

[Address  to  clerk  of  court  with  whom  it  should  be  filed.] 


Chapter  CXXXVIIL]  1741  [Forms  2535,  2536. 

2535.  Affidavit  to  move  for  reference  of  claim  to  surplus 

in  foreclosure. 

[Title.] 
[Venue.] 

W . . . .  X . . . .  [one  of  the  defendants  in  this  action],  be- 
ing duly  sworn,  says: 

That  this  action  was  brought  to  foreclose  a  mortgage  on 
real  property;  that  judgment  has  been  entered  in  said  action, 
as  this  deponent  is  informed  and  believes,  and  that  a  sale  has 
been  made  of  the  mortgaged  premises  under  the  direction  of 
the  court,  and  that  the  claim  of  the  plaintiff  in  the  action  has 

been  paid;  and  there  remains  a  surplus  of  about 

dollars  over  and  above  the  money  due  on  said  mortgage  and 
costs  of  this  action,  which  surplus  has  been  brought  into 
this  court  subject  to  the  order  thereof. 

That  deponent  has  a  claim  on  the  said  surplus  moneys 

amounting  to   dollars;  which  claim  consists  of  a 

judgment  obtained  in  this  court,  on  the day  of , 

19 . . ,  against  Y .  . . .  Z . .  . .  [or,  a  mortgage  made  on,  etc.,  by 
Y. . . .  Z .  .  .  .],  then  the  owner  in  fee  of  the  mortgaged  prem- 
ises [or,  which  claim  arises  by  virtue  of  the  fact  that  he  was 
the  owner  of  the  equity  of  redemption  in  the  mortgaged 
premises]. 

W....  X.... 
[Jurat.] 

2536.  Notice  of  motion  for  reference  to  obtain  surplus 

moneys  on  foreclosure  sale. 

[Title.] 

TAKE  NOTICE  that  upon  the  annexed  affidavit  of  W . . . . 
X....   and  upon  the  pleasings  and  proceedings  on  file  in 

this  action  the  undersigned  will  move  the court  on  the 

....  day  of ,  19. .,  at  , . .  .  o'clock  A.  M.  or  as  soon 

thereafter  as  counsel  can  be  heard,  that  it  be  referred  to 

R.  . . .  F.  . .  .,  Esq.,  of ,  to  ascertain  and  report  the 

amount  due  the  said  W. . . .  X.  .  . .,  or  to  any  other  person, 
which  is  a  lien  upon  such  surplus  moneys,  and  as  to  the 
priority  of  the  several  liens  thereon,  and  for  such  other  re- 
lief as  may  be  just. 

[Date.]  M....  N...., 

Attorney  for  said  W . . . .  X . . . . 


Forms  2537,  2538.]  1742  [Chapter  CXXXVIII. 

[Addressed  to  every  party  who  has  appeared  or  filed  notice 
of  claim.] 

2537.  Order  of  reference  of  claims  to  surplus  moneys. 

Title.]  [Caption  as  in  Form  8.] 

On  reading  and  filing  notice  of  claim,  by  W X to 

surplus  moneys  in  this  action,  and  on  motion  of  M . . . . 

N for  the  said  W X ,  and  0 P . . . .  having 

been  heard  for  [or,  and  on  reading  and  filingproof  of  due  serv- 
ice of  notice  of  this  application  on]  all  the  parties  who  have 
appeared  or  who  have  served  notice  of  claim  of  such  moneys, 
in  opposition: 

ORDERED,  that  it  be  referred  to  R F ,  Esq.,  of 

,  as  a  referee,  to  ascertain  and  report  the  amount  due 

the  said  W . . . .  X .... ,  or  to  any  other  person,  which  is  a 
lien  upon  such  surplus  moneys,  and  to  ascertain  the  priori- 
ties of  the  several  liens  thereon ;  and  that  the  said  referee  re- 
port thereon  with  all  convenient  speed. 

2538.  Referee's  report  thereon. 

-  [As  in  Form  2532  to  the  *,  continuing]: 

I  caused  all  the  parties  who  have  appeared  in  this  action, 
and  all  persons  having  filed  notice  of  claim  upon  such  sur- 
plus moneys,  to  be  summoned  to  appear  before  me;  as  ap- 
pears by  the  certificate  of  the  clerk,  showing  what  notices  of 
claim  have  been  filed,  and  by  the  summons  and  proof  of  serv- 
ice, which   are   annexed  and  marked  schedule  A.    And  that 

on  the  hearing,  I  was  attended  by  M . . . .  N . . . .  for  W 

X .... ,  and  by  0 ... .  P . . . .  for  the  defendant  Y . . . .  Z . . . . 

The  amount  of  such  surplus  moneys  is dollars,  as 

appears  by  the  certificate  of  the  clerk  of  this  court  hereto  an- 
nexed as  schedule  B. 

[Then  set  forth  the  claims,  the  evidence  or  facts  proved,  and 
any  objections  interposed,  and  then  the  conclusion  of  the  ref- 
eree, e.  g.,  thus]: 

And  I  find  the  foregoing  facts,  and  from  the  facts  so  found, 
I  report  that  said  W. . . .  X. . . .,  under  and  by  virtue  of  the 
sheriff's  deed  to  him,  is  the  owner  of  the  equity  of  redemp- 
tion of  said  premises,  and  as  such  owner,  he  is  entitled  to  the 


Chapter  CXXXVIII.]  1743  [Forms  2539,  2540. 

whole  of  said  surplus  moneys,  and  that  there  is  no  lien  or 
claim  thereon  prior  to  the  lien  and  claim  of  said  W . . . . 
X.... 
[Date.] 

R F Referee. 

2539.  Notice  of  motion  for  payment. 

[Title.] 

TAKE  NOTICE  that  the  referee's  report  as  to  the  sur- 
plus moneys  in  this  cause,  with  a  copy  whereof  you  have  been 
served,  will  be  presented  to  this  court  at  a  special  term  there- 
of, to  be  held  at  the  court-house  in   ,  on  the  .... 

day  of next,  at  the  opening  of  the  court  on  that  day  or 

as  soon  thereafter  as  counsel  can  be  heard,  and  a  motion  will 
then  and  there  be  made  for  an  order  [confirming  said  report, 
and]  that  the  clerk  of  this  court  pay  to  the  defendant,  W . . . . 

X . . . . ,  or  his  attorney,  the  whole  [or, dollars]  of  the 

surplus  moneys  in  this  cause  deposited  with  him,  and  for 
such  further  or  other  relief  as  may  be  just,  with  costs. 

[Date.] 

M....   N.... 

[To  all  parties  and  claimants  to  the  fund  who  have  appeared.] 

2540.  Order  distributing  surplus  moneys  on  foreclosure. 

[Title.  [Caption  as  in  Form  8.] 

[Recite  reference  and  report  substantially  as  in  Form  2546 
infra,  and  continuing]: 

IT  IS  ORDERED  that  said  report  be,  and  the  same  is, 
hereby  in  all  things  confirmed,  and  that  the  clerk  of  this 
court,  upon  the  filing  of  this  order,  be  and  he  is  hereby 
directed  to  pay,  out  of  the  surplus  moneys  remaining  in  his 
hands  to  the  credit  of  this  action,  to  the  persons  named  below 
the  sums  set  opposite  their  respective  names  and  in  the  order 
named. 

I.  To  W X ,  the  sum  of dollars  [fol- 
low with  others  if  any]. 

By  the  Court : 

0 P Judge. 


Forms  2541,  2542.]  1744  [Chapter  CXXXVIII. 

2541.  Notice  of  filing  report  of  referee.' 

[Title.] 

SIR:     Please  take  notice  that  on  the  ....  day  of , 

19. .,  M. . . .  N. . . .,  the  referee  appointed  to  tr\^  the  issues 
herein,  filed  in  the  office  of  the  clerk  of  said  court  his  report, 
and  that  a  copy  of  his  findings  of  fact  and  conclusions  of  law 
as  contained  in  said  report  are  hereto  annexed  and  here- 
with served  on  you. 

[Date.]  0 P 

Attorney  for 

To  [Address], 

Attorney  for 

2542.  Exceptions  to  report.' 

[Title.] 
And  now  comes  the  plaintiff  [or  defendant]  and  excepts  to 

the  report  of  M, ...  N referee  in  said  action,  dated 

,  19.  .,  as  follows: 

I.  He  excepts  to  the  first  finding  of  fact  in  said  report  con- 
tained [or  if  the  exception  be  to  a  part  of  the  finding]  to  that 
part  of  the  first  finding  of  fact  which  reads  as  follows  [in- 
sert part  excepted  to]. 

II.  [Proceed  in  same  way  as  to  other  findings  excepted  to]. 

III.  [If  the  exception  be  based  upon  a  failure  to  find  as  to 
any  specific  fact] :  He  excepts  to  the  said  report  for  the  reason 
that  the  said  referee  failed  to  find  [here  state  fact  omitted]. 

[Date.] 

0....  P 

Plaintiff's  [or.  Defendant's]  Attorney. 

»Wis.  Stats.  1913  sec.  2871;  N.  Gen.   Stats.   1913   sec.   7823;  Mo. 

Dak.  Rev.  Code  1905  sec.  7057.  R.  S.  1909  sec.  2012;  Neb.  R.  S. 

^  Exceptions  must  be  filed  to  the  1913  sec.  7892;  State  v.  Standard 

finding  of  the  referee  in  order  to  Oil  Co.  63  Neb.  95;  88  N.  W.  175 

entitle  the  party  objecting  to  a  re-  N.  Dak.  Rev.  Codes  1905  sec.  7057 

view  of  the  findings  by  the  court.  S.   Dak.   C.   C.   P.   1908  sec.  288 

Wis.  Stats.  1913  sec.  2871;  Cal.  C.  Okla.  Comp.  Laws  1909  sec.  5812 

C.  P.  1906  sec.  644,  645;  Colo.  Code  5814;  Oregon  Laws  1910  sec.  166 

Ann.    1911    sec.   231;    Idaho   Rev.  Utah  Comp.  Laws  1907  sec.  3177 

Codes  1908  sec.  4421;  Iowa  Ann.  Wash.  Rem.  and  Bal.   Code  1910 

1897  sec.  3740,  3742;  Kans.  Gen.  sec.  375;  Wyo.  Comp.  Stats.  1910 

Stats.  1909  sec.  5894;  Mont.  Rev.  sec.  4523. 
Codes  1907  sec.  6781,  6782;  Minn. 


Chapter  CXXXVIII.  1745  [Forms  2543-2545. 

2543.  Motion  to  confirm  report  of  referee  and  for  judg- 

ment. 

[The  object  of  the  motion  may  be  stated  thus  after  formal 
parts]:  that  the  said  report  and  the  findings  of  facts  and  con- 
clusions of  law  therein  be  confirmed  by  the  court  and  that 
judgment  for  the  plaintiff  [or  defendant]  be  rendered  accord- 
ing to  the  recommendations  of  said  report. 
[Date.] 

0....  P..... 
Plaintiff's  [or.  Defendant's]  Attorney. 

2544.  Motion  for  further  report. 

[The  object  of  the  motion  may  be  stated  thus  after  formal 
parts]:  that  M N ,  the  referee  in  this  action,  be  re- 
quired to  make  a  further  report  herein  stating  [his  findings  of 
fact  and  conclusions  of  law  separately,  or,  his  finding  upon  the 
question  here  briefly  state  question], 

2545.  Motion  to  set  aside  report  and  for  a  new  trial.^ 

[Title.] 

SIR:  Please  take  notice  that  upon  the  report  of  0. . . . 
P. . . .,  Esq.,  the  referee  herein,  heretofore  filed  and  upon  the 
pleadings  and  papers  on  file  in  this  action  [and  the  affidavits 
of  E F. . . .  and  G. . . .  H. . . .,  of  which  copies  are  here- 
with served  on  you],  the  plaintiff  [or,  defendant]  will  move 

the  court,  on  the day  of   ,  19.  .,  at  the  court 

house  in  the  city  of ,  in  said  county,  at  the  opening  of 

the  court  on  that  day  or  as  soon  thereafter  as  counsel  can  be 
heard,  for  an  order  vacating  and  setting  aside  the  said  re- 
port of  the  referee  and  directing  a  new  trial  of  the  issues  in 
this  action. 

[Date.] 

M N...., 

To  [Address],  ,  Attorney. 


,,  Attorney. 


»Wis.  Stats.  1913  sec.  2865;  Ariz.  Stats.  1909  sec.  5894;  Mont  Rev. 

R.  S.  1913  sec.  667;  Cal.  C.  C.  P.  Codes  1907  sec.  6782;  Minn.  Gen. 

1906  sec.  644,  645;  Colo.  Code  Ann.  Stats.   1913  sec.  7823;  Mo.  R.   S. 

1911   sec.  233;   Idaho  Rev.   Codes  1909  sec.  2013;  Neb.  R.  S.  1913  sec. 

1908  sec.  4420,   4421;   Iowa  Ann.  1284;  N.  Dak.  Rev.  Codes  1905  sec. 

Code  1897  sec.  3742;  Kans.  Gen.  7057;  S.  Dak.  C.  C.  P.  1908  sec 
110 


Form  2546.]  1746  [Chapter  CXXXVIII. 

2546.    Order  confirming,  setting  aside,  or  amending  ref- 
eree's report. 

[Title.] 

This  cause  coming  on  to  be  heard  on  the  ....  day  of , 

19..,  upon  the  motion  of  A....  B....,  the  plaintifT  [or, 
defendant]  to  [confirm  the  report  of  0....  P....,  Esq., 
referee  herein]  [or,  to  alter  the  report  of  0 ... .  P . .  . . ,  ref- 
eree herein],  [or,  to  modify  the  report  of  0 ...  .  P . . . . ,  ref- 
eree herein],  or,  to  set  aside  report  of  0 ... .  P .  .  .  . ,  referee 
herein];  and  said  m.otion  having  been  heard  upon  the 
pleadings,  the  evidence  taken  and  the  findings  of  said  ref- 
eree and  the  [here  specify  any  other  papers  that  may  have 
been  used  upon  the  motion]  and  after  hearing  G . . .  .  H . . . . , 

Esq.,  for  the ,  for  the  motion,  and  L. ]M. . . .  in 

opposition,  and  being  advised  in  the  premises: 

ORDERED,  that  the  said  report  of  the  referee  herein  be 
and  the  same  is  hereby  confirmed,  and  that  judgment  be 
entered  in  accordance  therewith,  to  wit  [here  specify  the  judg- 
ment to  be  entered]  or: 

ORDERED,  that  the  said  report  be  altered  and  modified 
in  the  following  respects,  to-wit  [here  specify  the  alteration  or 
modification],  and  that  judgment  be  entered  upon  the  same 
as  so  altered  and  modified,  to-wit  [here  specify  the  substance 
of  the  judgment  ordered],  or: 

ORDERED,  that  the  said  report  be  and  the  same  is 
hereby  set  aside  [and  that  a  trial  by  the  court  of  the  several 
issues  so  referred  be  had],  or: 

ORDERED,  that  said  report  be  referred  back  to  said  ref- 
eree who  is  directed  to  amend  the  same  in  the  following  re- 
spects, namely  [here  specify  the  nature  of  the  amendments 
directed]. 

By  the  Court: 

J K. . . .,  Judge. 

290;  Okla.  Comp.  Laws  1909  sec.  Wash.  Rem.  and  Bal.  Code  1910 
5814;  Oregon  Laws  1910  sec.  166;  sec.  376;  Wyo.  Comp.  Stats.  1910 
Utah  Comp.  Laws  1907  sec.  3177;      sec.  4523. 


CHAPTER  CXXXIX. 


TRIALS  BY  THE  COURT. 


2547.  Written  stipulation  waiving 

jury  trial. 

2548.  Findings  by  the  court,  gen- 

eral form. 

2549.  Findings  in  an  action  on  a 

promissory  note. 


2550.  The  same,  in  an  action  upon 

an  innkeeper's  liability. 

2551.  The  same,  in  divorce  action. 

2552.  Request  for  findings. 

2553.  Exceptions  to  the  findings. 

2554.  Notice  of  filing  of  the  deci- 


2547.  Written  stipulation  waiving  jury  trial.^ 

[Title.] 

It  is  hereby  stipulated  by  the  parties  that  trial  by  jury  be 
waived  and  that  the  same  be  tried  by  the  court  [at  the  .... 

term  of  the court  for county,  notice  of  trial 

being  hereby  waived]. 
[Date,] 

G H ,  Plaintiff's  Attorney. 

J....   K....,  Defendant's  Attorney. 

2548.  Finding  by  the  court,  general  form.^ 

[Title.] 

This  action  coming  on  for  trial  at  the  . term  of  said 

court  and  having  been  tried  before  the  court  [a  jury  trial 


*  As  a  general  rule  trial  by  jury 
may  be  waived  also  by  failing  to 
appear  in  the  action  and  by  oral 
consent  of  the  parties  in  open  court 
entered  on  the  minutes. 

''  Upon  the  trial  of  any  issue  by 
the  court  the  decision  must  be  in 
writing,  stating  the  facts  and  con- 
clusions of  law  separately.  Wis. 
Stats.  1913  sec.  2863;  Ariz.  R.  S. 
1913  sec.  528;  Arli.  Dig  of  Stats. 
1904  sec.  6213;  Cal.  C.  C.  P.  1906 
sec.  632.  633;  Colo.  Code  Ann.  1911 
sec.  290;  Idaho  Rev.  Codes  1908 
sec.  4406,  4407;  Mont.  Rev.  Codes 
1907  sec.  6763,  6764;  Minn.  Gen. 


Stats.  1913  sec.  7815;  N. 
Dak.  Rev.  Codes  1905  sec.  7039, 
7040;  S.  Dak.  C.  C.  P.  1908  sec.  276, 
277;  Oregon  Laws  1910  sec.  158; 
Utah  Comp.  Laws  1907,  sec.  3168, 
3169;  Wash.  Rem.  and  Bal.  Code 
1910  sec.  367.  In  Iowa  findings  of 
fact  are  only  necessary  in  actions 
at  law,  and  then  only  when  re- 
quested by  one  of  the  parties.  Iowa 
Ann.  Code  1897  sec.  3654.  In  some 
of  the  states  a  general  finding  for 
plaintiff  or  defendant  is  sufficient 
unless  one  of  the  parties  requests 
separate  findings:  Kans.  Gen. 
Stats.   1909  sec.  5891;  Mo.  R.  S. 


Form  2549.]  1748  [Chapter  CXXXIX. 

having  been  waived]   on  the    ....    day  of    19.., 

G. . . .  H Esq.,  appearing  for  the  plaintiff,  and  J. . . . 

K ,  Esq.,  for  the  defendant;  and  after  hearing  the  al- 
legations and  proofs  of  the  parties,  the  arguments  of  counsel, 
and  being  advised  in  the  premises,  I  hereby  make  and  file 
the  following  findings  of  fact  and  conclusions  of  law  con- 
stituting my  decision  in  said  action : 

Findings  of  Fact. 

I.  That  [here  state  the  facts  found  separately  and  con- 
cisely]. 

II.  That,  etc. 

Conclusions  of  Law, 

I.     That  [here  specify  the  same]. 

Let  judgment  be  entered  accordingly. 

[Date.] 

By  the  Court: 

0 P ,  Circuit  Judge. 

2549.    Findings  in  an  action  on  a  promissory  note.' 
[Commencement  as  in  last  preceding  form.] 

Findings  of  Fact. 

I.  That  at  the  time  of  making  the  note  hereinafter  men- 
tioned, the  plaintiff,  and  one  C. . . .  D. . . .,  were  partners  in 
busines,  under  the  firm-name  of  A ... .  B . . . .  &  Co. 

II.  That  on  the   ....   day  of   ,  19..,  at   , 

the  defendant  made  his  promissory  note  in  writing,  dated  on 
that  day,  and  thereby  promised  to  pay  to  the  plaintiff  and 

C . . . .   D  . . . . ,  under  said  firm-name,    dollars,  in 

....  months  after  said  date. 

III.  That  no  part  thereof  has  been  paid. 

1909  sec.  1972;  Neb.  R.  S.  1913  sec.  McKenzie  v.  Haines  123  Wis.  557; 

7865;  Okla.  Comp.  Laws  1909  sec.  102  N.  W.  33. 

5809;  Tex.   Civ.  Stats.  Ann.  1913  '  This   and   the  following  forms 

art.  1989;  Wyo.  Comp.  Stats.  1910  are    merely    suggestive.      The    de- 

sec.  4515.    In  Wisconsin  the  general  sic/e/'a/um  in  a  finding  of  fact  is  that 

finding  stating  that  all  the  allega-  each  ultimate  material  litigated  fact 

tions  of  the  complaint  are  true  is  be  stated  separately  and  conciselj'' 

not   considered    a   finding   of   any  and    that   the   conclusi*  ns   of   law 

specific  fact.     Burke  v.  Sidra  Bay  necessarj^  to  support  the  judgment 

Co.  116  Wis.  137;  92  N.  W.  568;  be  stated  in  the  same  way. 


Chapter  GXXXIX.]  1749  [Form  2550. 

IV.     That  on  the day  of ,  19 . . ,  at  

said  C . . . .  D .  . . .  died  leaving  the  plaintiff  sole  surviving 
partner  of  said  firm. 

Conclusions  of  Law, 

I.  That  the  cause  of  action  against  the  defendant  sur- 
vived to  the  plaintiff  on  the  death  of  C . . . .  D . . . . 

II.  That  the  defendant  is  indebted  to  the  plaintiff  on 
said  note  for dollars. 

Let  judgment  be  entered  for  the  plaintiff  in  the  sum  of 

dollars,  with  costs. 

M....  N ,  Judge. 

2550.    The  same,  in  an  action  upon  an  inn-keeper's  lia- 
bility. 

[Commencement  as  in  preceding  form.] 
Findings  of  Fact. 

I.  That  on  the  ....  day  of ,  19. .,  the  defendant 

was  a  common  inn-keeper  at  the  town  of  ,  in  this 

state. 

II.  That  on  said  day  the  defendant  received  and  en- 
tertained the  plaintiff  as  a  guest  at  his  inn,  for  hire. 

III.  That  the  inn  of  the  defendant  was  upon  the  sea- 
shore, and  in  connection  with  it  the  defendant  maintained 
bathing-houses  for  the  safekeeping  of  the  clothing,  wardrobe, 
and  such  money  and  jewelry  of  his  guests  as  are  usually  car- 
ried upon  the  person  of  guests  and  patrons  of  his  inn  and 
bathing-house. 

IV.  That  while  the  plaintiff  was  then  and  there  his  guest, 
the  defendant  undertook  for  compensation  paid  him  by  the 
plaintiff,  to  keep  safely  in  one  of  his  said  bathing-houses,  the 
clothing  and  such  articles  of  jewelry  and  valuables  as  the 
plaintiff  then  had  upon  his  person,  while  the  plaintiff  should 
bathe. 

V.  That  plaintiff  thereupon  put  into  the  said  bathing- 
house  his  clothing,  his  pocket-book  containing  money,  and 
such  other  property  as  is  usually  carried  upon  the  person,  of 
the  value  of dollars,  and  left  the  same  in  the  pos- 
session and  charge  of  the  defendant. 


Form  2551.]  1750  [Chapter  CXXXIX. 

VI.  That  while  the  plaintiff  was  there  bathing,  his  pocket- 
book  and  money  were,  by  the  negligent  and  dishonest  man- 
agement of  the  defendant  and  his  servants,  lost  and  stolen. 

VII.  That  the  said  inn  was  upon  the  seashore;  and  that 
facilities  for  bathing  according  to  the  custom  of  the  neigh- 
borhood, and  as  the  defendant  then  well  knew,  were  a  part 
of  the  accommodations  necessary  to  be  afforded  by  the  inn- 
keepers in  that  vicinity. 

VII.  That  the  defendant  did  not  provide  or  maintain  a 
safe  for  the  reception  of  the  money,  valuables  or  jewelry  of 
his  guests. 

Conclusions  of  Law. 

I.  That  defendant  is  liable  for  the  money  so  lost  in  his 
capacity  of  inn-keeper. 

II.  That  the  defendant  is  liable  for  the  money  so  lost,  by 
reason  of  his  negligence  and  misconduct  as  bailee  for  hire  of 
said  property. 

III.  That  the  defendant  is  responsible  for  the  negligence 
and  misconduct  of  his  servants  in  the  course  of  their  ordinary 
employment. 

IV.  That  the  money  so  lost  by  plaintiff  was  such  a  sum 
as  he  might  reasonably  carry  on  his  person. 

V.  That  plaintiff  is  not  entitled  to  recover  his  expenses  of 
advertising  his  loss,  or  in  employing  police  officers  to  recover 
his  said  pocket-book. 

Judgment  is  ordered  for  the  plaintiff  in  the  sum  of 

dollars,  with  costs. 

M....  N....,  Judge. 

2551.    The  same  in  divorce  action. 

[Commencement  as  in  preceding  form.] 

Findings  of  Fact. 

I.  That  the  parties  were  married  [state  when  and  where]. 

II.  That  on  the  ....  day  of ,  19. .,  the  defendant 

wilfully  deserted  the  plaintiff,  and  remained  away  from  her 
for  the  term  of  one  year  and  more  next  preceding  the  com- 
mencement of  this  action  and  wholly  neglected  during  that 
time  to  provide  for  her  support,  or  to  live  and  cohabit  with 
her. 


Chapter  CXXXIX.]  1751  [Form  2551. 

III.  That  the  defendant,  is  the  owner  of  property,  as  fol- 
lows: [here  specify  the  same  in  general  terms  and  the  value]; 
that  his  faculties  are  as  follows:  [here  specify  his  abilities  to 
earn  money,  and  his  income,  as  shown  by  the  proofs]. 

IV.  That  the  children  of  the  parties  are  two  in  number 
namely  [name  children  and  give  ages];  that  the  plaintiff  is  the 
fit  and  proper  person  to  have  the  care  and  custody  of  them 
and  supervision  of  their  education,  and  the  father  is  not  a  fit 
person. 

And  I  find  as 

Conclusions  of  Law. 

I.  That  the  plaintiff  is  entitled  to  divorce  from  the  bonds 
of  matrimony,  as  prayed  in  the  complaint. 

II.  That  she  is  entitled  to  an  allowance,  as  alimony,  out 
of  the  estate  of  the  defendant,  of  the  sum  of dol- 
lars; to  be  paid  to  her  in   installments  [here  specify 

dates  and  place  of  payment] ;  and  that  such  payment  be  charged 
as  a  lien  upon  the  following  described  real  estate  of  the 
defendant,  which  he  now  has,  to-wit  [describe  the  specific 
real  estate];  and  that  upon  neglect  or  refusal  to  pay  such  al- 
lowance as  suit  money,  the  plaintifT  may  apply  to  the  court 
to  enforce  the  same  by  execution. 

III.  That,  in  addition  to  the  suit  money  heretofore  al- 
lowed, the  plaintiff  should  recover  her  taxable  costs  in  this 
action. 

IV.  That  the  plaintiff  be  awarded  the  care  and  custody  of 
the  minor  children  [name  them],  and  that  the  defendant  be 

adjudged   to   pay   an   allowance  of    dollars   [here 

specify  the  times  and  manner  of  payment],  and  that  the  said 
sum  be  a  charge  upon  the  following  described  real  estate  of 
the  defendant,  to-wit:  [describe  same]. 

Or,  That  the  defendant  give  security  for  such  payment, 
by  executing  a  bond  with  two  sureties,  to  be  approved  by 
the  clerk  of  the  court. 

[Or,  when  the  court  decides  that  a  division  of  the  property  be 
had,  the  finding  may  direct  this  in  place  of  paragraph  II  above]: 

II.  That  the  property  of  the  husband,  both  real  and 
personal,  be  finally  divided  and  distributed  between  the 
parties,  as  follows:  The  following  described  real  estate  of 
the  defendant,  to-wit:  [describe  it],  shall  be  allowed  to  the 
plaintiff,  and  the  judgment  sliali  divest  him  of  the  title  and 


Forms  2552,  2554.]  1752  [Chapter  CXXXIX. 

transfer  the  same  to  her.    The  following  described  personal 
property  shall  also  be  allowed  to  the  plaintiff  and  the  title 
transferred  to  her  by  the  judgment,  to-wit:  [describe  it]. 
Let  judgment  be  entered  accordingly. 

M....   N 

Judge. 

2552.  Request  for  findings. 

[Title.] 

Now  comes  the  plaintiff  [or,  defendant]  herein  and  hereby 
requests  the  court  to  make  the  following  findings  of  facts 
and  conclusions  of  law  in  this  action. 

[Here  set  forth  the  separate  findings  desired^  in  the  same 
manner  as  in  a  finding  by  the  court.] 

2553.  Exceptions  to  the  findings. 

[Title.] 

Now  comes  the  plaintiff  [or,  defendant]  and  excepts  to  the 
findings  of  the  court  heretofore  made  and  filed  in  this  action 
as  follows: 

I.  He  excepts  to  the  first  finding  of  faot  therein  contained 
[or,  to  that  part  of  the  first  finding  of  fact  therein  contained 
which  reads  as  follows:  state  the  part  excepted  to]. 

II.  He  excepts  to  [state  second  separate  fact  excepted  to, 
and  so  on]. 

III.  He  excepts  to  said  decision  because  it  fails  to  find 
[here  state  any  fact  omitted  which  should  have  been  found]. 

IV.  He  excepts  to  the  refusal  of  the  court  to  find  the  fol- 
lowing fact  as  requested  [here  set  forth  any  finding  requested 
and  refused], 

[Date,]  G....  H...., 

Attorney  for 

2551    Notice  of  filing  of  the  decision. 

[Title.] 

Take  notice,  that  the  within  [or,  the  foregoing]  is  a  copy 
of  the  decision  of  Mr.  Justice  M . . , .  N . . . .  in  this  action, 


Chapter  CXXXIX.]  1753  [Form  2554. 

tried  before  him  without  a  jury,  and  of  his  findings  of  fact 
and  conclusions  of  law  herein,  and  that  the  same  was  filed 

in  the  office  of  the  clerk  of  the court  of county, 

on  the  ....  day  of ,  19. . 

G....H...., 

To  J K ,  Attorney. 

Attorney. 


CHAPTER  CXL. 
NEW  TRIALS   AND   BILLS   OF   EXCEPTIONS. 


2555.  Motion  for  new  trial,  on  the 

minutes  of  the  judge. 

2556.  Notice   of   motion    for    new 

trial  on  statement  of  the 
case  or  hill  of  exceptions. 

2557.  Alternative   motions    to   set 

aside  answers  of  special 
verdict  and  for  judgment, 
or  in  event  of  refusal  to 
grant  new  trial. 

2558.  Motion    for    new    trial    on 

ground  of  newly  discovered 
evidence. 

2559.  Affidavit  for  new  trial  show- 

ing newly  discovered  evi- 
dence. 

2560.  Corroborating  affidavit. 

2561.  AfTidavit  to  move  for  a  new 

trial  on  the  ground  of 
surprise. 

2562.  AfTidavit  for  new  trial  on  the 

ground  of  surprise. 

2563.  The  same,  another  form. 

2564.  Corroborating  affidavit. 

2565.  Affidavit   for   new   trial   be- 

cause of  misconduct  of  a 
juror. 


2566.  Affidavit   for   new   trial   for 

misconduct  of  the  jury. 

2567.  Affidavit   for   new   trial    on 

ground  of  improper  com- 
munication by  a  party  to 
the  members  of  the  jury. 

2568.  Order    granting    new    trial 

before  judgment  on  terms. 

2569.  The  same,  without  terms. 

2570.  Same,     after    judgment 

entered. 

2571.  Order     for     new     trial     for 

excessive  damages. 

2572.  Proposed  bill  of  exceptions, 

jury  trial. 
25^3.  Notice  served  with  proposed 
bill  of  exceptions. 

2574.  Reporter's  certificate.     (Wis- 

consin). 

2575.  Proposed  amendments  to  bill 

of  exceptions. 

2576.  Notice  of  settlement  of  bill 

of  exceptions. 

2577.  Certificate  to  bill  of  excep- 

tions or  statement  of  facts 
(Washington). 


2555.    Motion  for  new  trial,  on  the  minutes  of  the  judge.^ 

[Title.] 

And  now  comes  the  defendant  above  named  at  the  same 
term  at  which  the  said  action  was  tried  and  moves,  upon  the 


1  Wis.  Stats.  1913  sec.  2878.  In 
Iowa  the  motion  must  be  made 
within  three  days  after  the  verdict 
or  decision  is  rendered  (Iowa  Ann. 
Code  1897  sec.  3755,  3756),  except 
when  made  on  the  ground  of  newly 
discovered  evidence.  In  North 
Dakota  the  particular  errors  of  law 


relied  on,  or  the  particular  in  which 
the  evidence  is  insufficient  to  sus- 
tain the  verdict,  must  be  set  forth 
in  the  motion  (N.  Dak.  Rev.  Codes 
1905  sec.  7064,  7065);  the  same  rule 
exists  in  South  Dakota  (S.  Dak.  C. 
C.  P.  1908  sec.  303  subd.  4).  In 
Nebraska  the  application  must  be 


Chapter  CXL.]  1755  [Form  2556. 

minues  of  the  judge,  to  set  aside  the  verdict  herein  and  for  a 
new  trial  of  said  action  upon  the  following  grounds: 

I.  Because  the  court  erred  in  overruling  the  defendant's 
objection  to  the  reception  of  any  evidence  under  the  com- 
plaint. 

II.  Because  the  court  erred  in  admitting  evidence  against 
the  objection  of  the  defendant. 

III.  Because  the  court  erred  in  refusing  to  receive  evi- 
dence offered  by  the  defendant  upon  the  trial. 

IV.  Because  the  court  erred  in  instructing  the  jury  in 
the  particulars  to  which  the  defendant  has  filed  written 
exceptions. 

V.  Because  the  court  erred  in  refusing  to  instruct  the  jury 
as  requested  by  the  defendant  in  writing. 

VI.  Because  the  verdict  is  contrary  to  law. 

VII.  Because  the  verdict  is  contrary  to  the  evidence. 

VIII.  Because  the  damages  are  excessive. 
[Date.] 

J....  K...., 
Defendant's  Attorney 

2556.    Notice  of  motion  for  new  trial  on  statement  of  the 
case  or  bill  of  exceptions. 

[Title.] 

TAKE  NOTICE,  that  the  above  named  defendant  in- 
tends to  and  will  move  the  court  to  set  aside  the  verdict  of 
the  jur>^  herein  and  grant  a  new  trial  of  this  action  on  the  fol- 
lowing grounds,  to-wit: 

I.  Insufficiency  of  the  evidence  to  justify  the  verdict  of 
the  jury  [state  in  what  particular]. 

II.  That  said  verdict  is  against  the  law. 

within  three  days  after  verdict,  but  Idaho  Rev.  Codes  1908  sec.  4440 

the   grounds   of   tl.  >   motion   need  Kans.  Gen.  Stats.  1909  sec.  5900 

only  be  stated  in  the  language  of  Mont.  Rev.  Codes  1907  sec.  9351 

the'  statute  (Neb.  R.  S.   1913  sec.  Minn.  Gen.  Stats.  1913  sec.  7829 

7883,  7885).     In  the  balance  of  the  Mo.   R.   S.    1909   sec.   2025;   Okla. 

states  covered   by   this  work,   the  Comp.  Laws  1909  sec.  5829;  Oregon 

following   statutes  govern   the  su-  Laws  1910  sec.  175;  Tex.  Civ.  Stats, 

ject:  Ariz.  R.  S.  1913  sec.  585;  Ark.  Ann.   1913  art.  2019  et  seq.;  Utah 

Dig.  of  Stats.  1904  sec.  6218-6220;  Comp.  Laws  1907  sec.  3293;  Wash. 

Cal.    C.    C.   P.    1906  sec.   657-659;  Rem.  and  Bal.  Code  1910  sec.  400; 

Colo.    Code   Ann.    1911    sec.    237;  Wyo.  Comp.  Stats.  1910  sec.  4604. 


Form  2557.]  1756  [Chapter  CXL. 

III.  Errors  in  law  occurring  at  the  trial  and  excepted  to 
by  the  defendant  as  follows,  to-wit:  [specify  the  errors]. 

The  said  motion  will  be  made  upon  a  statement  of  the 
case  [or,  a  bill  of  exceptions]  hereafter  to  be  settled  and  filed. 
[Date.] 

E....F...., 
Defendant's    Attorney. 
To  said  plaintiff  and  to  L M Esq.,  his  attorney. 

2557.    Alternative  motions  to  set  aside  answers,  of  spe- 
cial verdict. 
[Title.] 

NOW,  at  said  term  and  in  open  court  at  the  time  said 
verdict  is  returned,  the  plaintiff  moves  said  court,  upon  said 
verdict,  and  upon  the  records  and  papers  on  file,  proceed- 
ings had  in  the  above  entitled  cause,  including  the  excep- 
tions taken  by  the  plaintiff  upon  said  trial,  and  the  minutes 
of  the  judge  thereof,  as  follows: 

First  Motion:  Plaintiff  moves  for  judgment  in  favor  of 
the  plaintiff  upon  said  special  verdict  of  the  jury  rendered  in 
said  action. 

Second  Motion:  If  said  "First  Motion"  be  denied,  plain- 
tiff moves  for  judgment  in  favor  of  the  plaintiff,  notwithstand- 
ing said  special  verdict  of  the  jury  rendered  in  this  action. 

Third  Motion:  If  said  "First"  and  "Second"  motions  be 
denied,  plaintiff  moves  for  an  order  changing  the  answer  to 
the  second  question  in  the  special  verdict  from  "Yes"  to 
"No,"  and  for  judgment  in  favor  of  the  plaintiff  upon  said 
special  verdict,  when  so  amended,  and  upon  the  uncon- 
tradicted evidence. 

Fourth  Motion:  If  said  "First,"  "Second"  and  "Third" 
motions  be  denied,  plaintiff  moves  for  an  order  changing  the 
answer  to  the  third  question  in  said  special  verdict  from 
"No"  to  "Yes,"  and  for  judgment  in  favor  of  the  plaintiff 
upon  said  special  verdict,  when  so  amended,  and  upon  the 
uncontradicted  evidence. 

Fifth  Motion:  If  said  "First,"  "Second,"  "Third"  and 
"Fourth"  motions  be  denied,  plaintiff  moves  for  an  order 
changing  the  answer  to  the  fourth  question  of  said  special 
verdict  from  "Yes"  to  "No"  and  for  judgment  in  favor  of 
the  plaintiff  upon  said  special  verdict,  when  so  amended, 
and  upon  the  uncontradicted  evidence. 


Chapter  CXL.]  1757  [Form  2557. 

Sixth  Motion:  If  the  "First,"  "Second,"  "Third," 
"Fourth"  and  "Fifth"  motions  herein  be  denied,  plaintiff 
moves  for  an  order  changing  the  answer  to  the  sixth  question 
of  said  special  verdict  from  "No"  to  "Yes,"  and  for  judg- 
ment in  favor  of  the  plaintiff  upon  said  special  verdict,  when 
so  amended,  and  upon  the  uncontradicted  evidence. 

Seventh  Motion:  If  said  "First,"  "Second,"  "Third," 
"Fourth,"  "Fifth"  and  "Sixth"  motions  herein  be  denied, 
plaintiff  moves  for  an  order  changing  the  answer  to  the 
second  question  in  said  special  verdict  from  "Yes"  to  "No," 
and  the  answer  to  the  third  question  in  said  special  verdict 
from  "No"  to  "Yes,"  and  for  judgment  in  favor  of  the 
plaintiff  upon  said  special  verdict,  when  so  amended,  and 
upon  the  uncontradicted  evidence. 

Eighth  Motion:  If  said  "First,"  "Second,"  "Third," 
"Fourth,"  "Fifth,"  "Sixth"  and  "Seventh"  motions  herein 
be  denied,  plaintiff  moves  for  an  order  changing  the  answer  to 
the  second  question  in  said  special  verdict  from  "Yes" 
to  "No,"  and  the  answer  to  the  third  question  in  said  special 
verdict  from  "No"  to  "Yes,"  and  the  answer  to  the  fourth 
question  in  said  special  verdict  from  "Yes"  to  "No,"  and 
for  judgment  in  favor  of  the  plaintiff  upon  said  special  ver- 
dict, when  so  amended,  and  upon  the  uncontradicted  evi- 
dence. 

Ninth  Motion:  If  said  "First,'*  "Second,"  "Third," 
"Fourth,"  "Fifth,"  "Sixth,"  "Seventh"  and  "Eighth"  mo- 
tions herein  be  denied,  plaintiff  moves  for  an  order  changing 
the  answer  to  the  second  question  in  said  special  verdict 
from  "Yes"  to  "No,"  and  the  answer  to  the  third  question  in 
said  special  verdict  from  "No"  to  "Yes,"  and  the  answer 
to  the  fourth  question  in  said  special  verdict  from  "Yes" 
to  "No,"  and  the  answer  to  the  sixth  question  in  said  special 
verdict  from  "No"  to  "Yes,"  and  for  judgment  in  favor  of 
the  plaintiff  upon  said  special  verdict,  when  so  amended,  and 
upon  the  uncontradicted  evidence. 

Tenth  Motion:  If  all  of  the  foregoing  motions  be  denied 
the  plaintiff  moves  to  set  aside  the  verdict  herein  and  for  a 
new  trial  upon  the  following  grounds,  viz.:  [State  grounds 
as  in  the  preceding  forms  in  this  chapter]. 

[Dated.]  L....    M...., 

Plaintiff's  Attorney. 


Forms  2558,  2559.]  1758  [Chapter  CXL. 

2558.  Motion  for  new  trial  on  ground  of  newly  discov- 

ered evidence. 

[Title.] 

Gentlemen :  Take  notice  that  upon  the  affidavits  of  L . . . . 
M . . . .  and  N . . . .  0 .... ,  copies  of  which  are  herewith  served 
upon  you,  and  upon  the  pleadings  and  proceedings  on  file  in 
said  action  [and  upon  the  bill  of  exceptions  heretofore  set- 
tled in  said  action]  the  undersigned  will  on  the  ....  day  of 

,  19. .,  at  ....  o'clock,  A.  M.,  of  that  day  at  the  court 

house  in   ,  move  the  court  for  an  order  setting  aside 

the  verdict  in  this  action  [and  the  judgment  entered  therein] 
and  for  a  new  trial  herein  upon  the  newly  discovered  evi- 
dence set  forth  in  said  affidavit. 

Dated ,19..  R S 

Attorney  for 

[Address.] 

2559.  Affidavit  for  new  trial  showing  newly  discovered 

evidence.^ 

C . . . .  D . . . .  being  only  sworn  says  that  he  is  the  de- 
fendant in  the  above  entitled  action. 

That  this  action  was  tried  on  the  ....  day  of ,  19. ., 

at  [ court],  held  in  and  for  the  county  of  at 

,  in  said  county. 

That  said  trial  resulted  in  a  verdict  for  the  plaintiff  for 
dollars. 

That  since  the  said  trial,  and  on  the  ....  day  of , 

19. .,  deponent  has  discovered  for  the  first  time  that  he  could 

have  proved  by  one  J K. . . .,  who  resides  at , 

the  following  facts:  that  at  the  time  of  the  representations 
testified  to  by  L. . . .  M. .  . .,  upon  the  trial  of  this  action, 
he  was  present;  that  the  representations  actually  made  by 
the  defendant's  agent  at  that  interview  were  [here  set  forth 
declarations  made] ;  that  the  said  0 . . . .  P . . . .  did  not  say 

*  Upon    such    an    application    it  in  preparing  for  such  former  trial, 

must  appear  that  the  evidence  is  The   motion   must    also   be   made 

(1)   material,    (2)    not  merely   im-  promptly  on  discovery  of  the  new 

peaching,   (3)  not   cumulative,   (4)  evidence  and  (if  possible)  the  afTi- 

that    it    was    not    known    at   the  davit   of  the   new  witness   should 

time  of  the  former  trial   and    (5)  accompany  the  application  showing 

that  reasonable  diligence  was  used  what  he  will  testify  to. 


Chapter  CXL.]  1759  [Forms  2560,  2561. 

that  [here  set  forth  declaration  testified  to  bij  L. . . .  M . . .  .] 
or  anything  to  that  effect. 

That  before  said  trial  the  affiant  used  due  diligence  to  ob- 
tain all  the  testimony  necessary  to  support  the  issue  on  his 
part;  but  upon  and  after  diligent  inquiry  was  unable  to  learn 
and  did  not  know  that  said  J  . . . .  K . . . .  was  a  material  wit- 
ness or  knew  anything  of  said  transaction  or  to  obtain  the  evi- 
dence which  he  is  informed  and  believes  he  can  prove  by  said 
wdtness. 

That  he  was  unable  to  produce  any  witness  to  the  facts 
aforesaid  on  the  former  trial;  that  he  made  diligent  search 
and  inquiry  for  a  witness  and  evidence  to  prove  the  said 
facts,  but  could  fmd  or  learn  of  no  one  by  whom  said  facts 
could  be  proved. 

C...  D.... 
[Jurat.] 

2560.  Corroborating  affidavit. 

[Title.] 
[Yenue.] 

J. . . .  K ,  being  duly  sworn,  says: 

That  he  is,  and  was  at  the  time  of  the  conversation  be- 
tween L....  M....  and  the  defendant's  agent,  0.... 
P. .  .  .,  a  clerk  in  the  store  of  the  defendant. 

That  at  the  said  conversation  so  referred  to  the  said  0 . . . . 
P . . . .  made  the  representations  set  forth  in  the  foregoing 
affidavit,  and  no  others. 

That  deponent  did  not  communicate  the  facts  aforesaid 
to  the  defendant  before  the  verdict  in  this  action  because 
[here  set  forth  reasons,  as  for  instance,  deponent  did  not  know 
that  any  action  had  been  commenced  or  was  pending  be- 
tween the  parties  until  after  said  verdict  was  rendered]. 

J....    K.... 
[Jurat.] 

2561.  Affidavit  to  move  for  a  new  trial  on  the  ground  of 

surprise.^ 

[Title.] 
[Venue.] 

Q. . . .  R. . . .,  being  duly  sworn,  says  that  he  is  the  at- 
torney for  the  defendant  herein. 


Form  2562.]  1760  [Chapter  CXL. 

That  this  action  was  brought  to  recover  possession  of 

certain  real  property,  to-wit,  a  farm  in  the  town  of , 

in  this  state. 

That  from  the  commencement  of  this  action  until  about 
[ten]  days  prior  to  the  trial  hereof,  the  attorney  for  the  plain- 
tiff had  in  his  possession  a  certain  deed,  made  and  executed 
by  the  father  of  the  plaintiff,  now  deceased,  conveying  said 
real  property  in  fee  to  one  J .  .  .  .  K . . . . 

That  plaintifT  claims  title  to  said  real  property  by  descent 
from  his  said  father,  and  in  no  other  way. 

That  deponent  gave  plaintiff's  attorney  reasonable  notice 
to  produce  said  deed  on  the  trial,  and  further  duly  and  sea- 
sonably subpoenaed  the  plaintiff's  attorney  to  attend  the 
trial,  and  bring  with  him  the  said  deed. 

That  prior  to  the  service  of  said  notice  and  subpoena,  the 
plaintiff's  attorney  delivered  said  deed  to  the  plaintiff,  who 
thereupon  deposited  the  same  with  L ....  M ... .,  the  counsel 
of  plaintiff,  residing  in 

That  at  the  trial  of  this  action,  deponent  learned  for  the 
first  time  that  the  said  plaintiff's  attorney  had  parted  with 
said  deed. 

That  up  to  the  time  he  was  put  upon  the  stand,  the  plain- 
tiff's attorney  entirely  concealed  from  deponent  the  fact  that 
said  deed  was  out  of  his  possession. 

That  deponent  was  taken  entirely  by  surprise  by  the  fail- 
ure of  the  plaintiff's  attorney  to  produce  said  deed. 

That  on  a  new  trial  deponent  can,  as  he  believes,  obtain 
the  production  of  said  deed,  or  if  not,  can  prove  the  contents 
thereof  by  the  testimony  of  J ... .  K . . . . 

Q R.... 

[Jurat] 

2562.    Affidavit  for  new  trial  on  the  ground  of  surprise.* 

[Title.] 
[Venue.] 

L M . . . . ,  being  duly  sworn,  says  that  he  is  the  at- 
torney for  the  defendant  in  this  case  and  has  had  sole  man- 

'  This   motion   should   be   made  vits  if  possible, 
with   promptness.     It   is  a  matter  ''  Upon  the  grounds  set  forth  in 

much  within  the  discretion  of  the  this    afhdavit    a    new    trial    was 

court  and  the  facts  should  be  es-  granted  in  Stoppelfeldt  v.  Ry.  Co., 

tablished  by  corroborating  affida-  29  Wis.  088. 


Chapter  CXL.]  1761  [Form  2563. 

agement  thereof  from  its  commencement  and  is  the  only 
person  familiar  with  the  matters  in  controversy;  that  issue 

was  joined  in  said  action  on  the  ....  day  of ,  19. ., 

and  that  the  same  was  upon  the  calendar  for  trial  at  the  .... 
term,  19. .,  of  said  court. 

That  on  the  ....  day  of ,  19 . .,  the  afTiant  was  un- 
expectedly called  to on  professional  business  of  great 

importance,  and  expected  to  be  detained  there  but  two  days; 
but  that  he  was  compelled  by  said  business  to  remain  there 
until  the  ....  day  of ,  19 . . ,  on  which  day  he  was  in- 
formed by  0 . . .  .  P . . . .  that  the  said  court  was  about  to 
adjourn  sine  die,  and  that  the  attorneys  for  the  plaintiff 
would  not  consent  to  a  postponement  of  the  trial. 

That  thereupon,  on  the  ....  day  of ,  19. .,  by  the 

first  train  the  affiant  hastened  home  but  was  unable  to 

reach until  the  ....  day  of ,  19. .,  when  he 

learned  that  the  case  had  been  brought  on  for  trial  in  his 
absence,  and  the  damages  assessed,  and  verdict  rendered,  as 
now  of  record. 

That  upon  the  affiant's  knowledge  of  the  facts  in  the  case 
and  the  testimony  which  the  defendant  has,  and  from  con- 
sultation with  the  witnesses  for  the  defendant,  this  affiant 
is  of  opinion  that  upon  a  retrial,  the  defendant  will  be  able  to 
establish  his  defense  set  forth  in  his  answer. 

X.J  •  •  •  •    J.VX  •  •  •  • 

[Jurat.] 

[Attach  affidavit  of  merits^  as  follows]: 
[Venue.] 

C ....  D ... .  [defendant],  being  first  duly  sworn,  says  that 
he  is  the  defendant  in  the  above  entitled  action;  that  issue 

was  joined  therein  on  the day  of ,  19. .,  and 

that  this  defendant  has  a  valid  defense  in  whole  in  said  ac- 
tion [or  in  part,  specifying  which  pari], 

\^» » » t  U.... 
[Jurat.] 

2563.    The  same,  another  form." 

[Title.] 
[Venue.] 

L. . . .  M. . . .,  being  duly  sworn,  says  that  he  is  the  de- 
fendant in  this  action.    That  the  same  was  brought  by  plain- 
ill 


Form  2564.]  1762  [Chapter  CXL. 

tiff  to  recover  [here  state  plaintiff's  alleged  cause  of  action] 
and  that  issue  was  joined  therein ,  19. .,  by  the  serv- 
ice of  defendant's  answer,  in  which  the  defendant  pleaded 
a  general  denial  to  the  complaint  but  did  not  set  forth 
afTirmatively  the  defense  of  payment,  although  as  matter  of 
fact  said  plaintiff's  claim  had  been  fully  paid  and  discharged 
prior  to  the  comm.encement  of  this  action. 

That  said  action  was  duly  placed  upon  the  calendar  at  the 

....  term  of  the court  but  was  not  then  tried  but 

continued  to  the  present  term,  and  that  a  conversation  was 

then  held  by  counsel  in  the  presence  of  the  Hon.  J ....  K , 

judge  of  said  court,  in  which  the  question  of  the  necessity 
of  amending  said  answer  so  as  to  affirmatively  show  payment 
was  discussed,  and  that  said  judge  took  part  in  said  con- 
versation; that  the  said  conversation  was  to  the  effect  that 
such  amendment  was  unnecessary,  and  that  the  defendant 
was  thereby  misled  as  to  the  necessity  of  amending  his  an- 
swer, setting  up  said  payment  as  a  defense  and  led  to  be- 
lieve that  it  could  be  shown  in  the  proofs  that  such  payment 
had  been  made;  and  being  so  misled,  said  defendant  and  his 
counsel  deemed  it  unnecessary  to  plead  the  defense  by  amend- 
ment or  to  apply  for  leave  to  so  amend. 

L M.... 

[Jurat.] 

[Attach  affidavit  of  merits  as  in  Form  2562.] 

2564.    Corroborating  affidavit. 

[Title.] 
[Venue.] 

E F . . . . ,  being  duly  sworn,  says  that  he  is  the  at- 
torney for  the  defendant  in  this  action;  that  he  has  read  the 
affidavit  of  L . . . .  M . . . .  hereto  attached,  and  was  present 
at  the  conversation  therein  referred  to,  and  that  the  purport 
of  said  conversation  is  truly  set  forth  in  said  affidavit.  That 
deponent  was  misled  by  said  conversation  into  the  belief 
that  the  answer  was  sufficient  to  authorize  the  proof  of 
payment  as  a  defense,  and  that  deponent  relying  thereon 

•  In    the    case    of    State  ex  rel.  the  following  affidavit  and  the  or- 

V.  Hoeflinger,  33  Wis.  594,  a  new  der  was  affirmed  by  the  supreme 

trial  was  granted  on  substantially  court, 
the  grounds  set  forth  in  this  and 


Chapter  CXL.]  1763  [Forms  2565,  2566. 

proceeded  to  trial  of  said  case  without  amending  said 
answer  and  was  completely  surprised  by  objection  to  such 
proof  made  at  the  trial  by  the  plaintiff. 

E  F 

[Jurat] 

2565.  Affidavit  for  new  trial  because  of  misconduct  of  a 

juror. 
[Title.] 
[Venue] 
J . . . .  K . . . . ,  being  duly  sworn,  says  that  on  the  ....  day 

of ,  19 . .,  the  second  day  of  the  trial  of  this  action,  on 

the  steps  of  the  court  house  in  the  city  of ,  he  heard 

a  conversation  between  one  L . . . .  M . . . .  and  R . . . .  S . . . . , 
one  of  the  jurors  before  whom  said  action  was  then  on  trial. 

II.  That  the  said  L. . . .  M . . . .  then  and  there  told  said 
juror  that  he  was  acquainted  with  the  witnesses  in  this  case, 
and  had  been  acquainted;  that  they  would  swear  to  anything 
for  a  dollar. 

III.  That  the  said  L . . . .  M applied  these  remarks  to 

the  witnesses  for  the  [defendant]  only;  that  said  L.... 
M spoke  of  U . . . .  V .... ,  one  of  the  defendant's  wit- 
nesses, in  particular,  as  a  bad  character. 

IV.  That  the  said  L . . . .  M then  and  there  stated  to 

said  juror  that  W. . . .  X. . . .,  the  principal  witness  for  the 
plaintiff,  was  a  very  respectable  citizen;  that  he  had  never 
heard  anything  against  him. 

V.  That  the  said  L M and  the  said  juror  were 

and  are  old  acquaintances  and  friends. 

VI.  That  on  the  next  day,  and  while  the  trial  was  still 
proceeding  at  the  same  place,  the  said  L . . . .  M . . . .  in  the 
hearing  of  deponent,  renewed  the  said  conversation,  and  in- 
timated that  in  his  opinion  the  defendant  was  endeavorin'g 
to  establish  his  case  by  false  swearing. 

«!••••    XV..  •  •  • 

[Jurat.] 

2566.  Affidavit  for  new  trial  for  misconduct  of  the  jury. 
[Title.]  . 

[Venue.] 

J . . . .  K ,  being  first  duly  sworn,  says  that  he  is  one  of 

the  defendants  in  the  above  entitled  action. 


Form  2567.]  1764  [Chapter  CXL. 

That  the  jury,  in  finding  their  verdict  in  this  action,  as  the 
affiant  is  informed  and  believes,  agreed  that  they  should 
each  mark  the  sum  of  damages  he  was  in  favor  of  assessing 
and  that  the  sum  of  such  marking  divided  by  the  number  of 
jurors  should  be  the  amount  assessed;  and  that  upon  such 
agreement  previously  made  they  so  marked,  added  the  re- 
sult, divided  the  same  by  twelve,  thereby  arriving  at  the  sum 
assessed  as  damages. 

That  four  members  of  the  jury,  to-wit  [name  them],  went, 
during  recess  in  the  trial,  and  viewed  the  premises  where  the 
alleged  defect  existed,  by  which  the  injury  was  received. 

That  the  said  jury,  without  leave  of  the  court  or  the  knowl- 
edge or  consent  of  defendant's  counsel,  obtained  possession 
of  certain  maps  of  the  premises  involved  in  the  issue,  and 
certain  papers  and  letters,  to-wit  [specify  what],  which  were 
not  used  in  evidence,  and  in  their  deliberations  in  the  jury 
room  examined  and  read  the  same. 

J....  K.... 
[Jurat.] 

[There  should  be  added  the  affidavit  of  some  person  with  per- 
sonal knowledge  of  the  facts,  such  as  the  officer  in  charge  of 
the  jury,  if  possible.] 

2567.  Affidavit  for  new  trial  on  ground  of  improper  com- 
munication by  a  party  to  the  members  of  the 
jury.« 

[Title.] 
[Venue.] 

J K. . . .,  being  duly  sworn,  says  that  on  the  morn- 
ing of  the  second  day  of  the  trial  of  this  cause,  and  after  the 
plaintiff  had  rested  his  case,  but  before  the  opening  of  the 
court,  three  of  the  jurors  who  wxre  empaneled  to  try  the 
cause  were  in  the  bar-room  of  a  public  house  in  the  village  of 
,  together  with  a  number  of  other  persons  there  as- 
sembled. 

That  while  said  jurors  were  there,  the  plaintiff  addressed 
them,  and  said  in  their  presence  and  hearing,  that  the  de- 

»The   affidavit   of   a   juror   will  to   show  misconduct   on  Hhe  part 

not  be  received  to  show  miscon-  of    others    by    which    the    verdict 

duct    on    the   part    of    himself   or  may  have  been  influenced, 
other  jurors,  but  may  be  received 


Chapter  CXL.]  1765  [Form  2568. 

fendants  were  a  cut-throat  corporation;  that  they  had 
swindled  the  public;  that  they  had  defrauded  him,  the  plain- 
tiff; that  he,  plaintiff,  had  paid  them  thousands  of  dollars; 
that  he  delivered  the  fruit  in  controversy  on  said  trial  to  the 
defendants  at  their  dock  to  be  carried  on  their  boats,  and 
that  they  refused  to  carry  the  same,  and  went  off  without  it; 
and  in  consequence  the  fruit  rotted  or  spoiled  on  his,  plain- 
tiff's hands,  and  he  lost  several  hundred  dollars;  and  that  de- 
fendants ought  to  stand  it  or  be  compelled  to  suffer  the  loss. 

That  thereupon  the  constable  in  attendance  upon  the 
court  remarked  to  the  plaintiff  in  the  presence  and  hearing  of 
the  jurymen,  that  the  persons  he  was  addressing  were  jury- 
men, and  asked  plaintiff  if  he  did  not  know  it. 

That  plaintiff  immediately  replied  that  he  knew  what  he 
was  about,  and  requested  the  constable  to  mind  his  own 
business,  and  that  what  he  had  been  saying  to  the  jurors 
about  his  suit  was  true;  and  he,  plaintiff,  afterwards  con- 
tinued addressing  the  jurors  in  substance  as  before,  detail- 
ing as  he,  plaintiff  insisted,  what  were  the  facts  of  his  case, 
and  the  mismanagement  of  the  defendants  in  relation  to  his 
fruit. 

«l  .  .  .   .     XV.  .  •  • 

[Jurat] 

2568.    Order  granting  new  trial  before  judgment  on 
terms.^ 

[Title.] 

The  defendant's  motion  to  set  aside  the  verdict  herein  and 
for  a  new  trial  upon  the  minutes  having  been  heard  on  this 

day  of ,  19. .,  and  the  court  being  fully  advised 

in  the  premises. 

ORDERED  that,  upon  payment  by  the  defendant  of  the 

taxable  costs  of  the  former  trial,  taxed  at dollars, 

within  ....  days  from  this  date,  the  verdict  herein  be  set 

^  When   a  new   trial   is  granted  the  preponderance  of  the  evidence 

because  of  errors  of  the  court  or  simply,  or  on  the  groi    d  of  mis- 

because    the    verdict    is    perverse,  take   or   excusable   neglect   of   the 

wholly    unsupported    by    the    evi-  party,    or   surprise,    or   for   newly 

dence,   or   procured   by  fraud,   no  discovered  evidence,  terms  should 

terms  should  be  imposed;  if,  how-  ordinarily  be  imposed, 
ever,  it  be  granted  because  against 


Forms  2569-2571.]  1766  [Chapter  CXL. 

aside  and  a  new  trial  granted  upon  the  ground  [here  state 
grounds]. 

Further  ordered  that  upon  default  in  such  payment  said 
motion  be  denied  and  judgment  entered  upon  the  verdict  on 
due  proof  of  such  default. 

[Date.]  By  the  Court: 

0....  P....,  Judge. 

2569.  The  same,  without  terms.' 

[Introduction  as  in  preceding  form.] 

ORDERED  that  the  said  verdict  be  and  the  same  is 
hereby  set  aside  and  a  new  trial  granted,  costs  to  abide  the 
event  of  the  action,  on  the  ground  that  [here  state  grounds,  as, 
that  the  verdict  was  perverse,  or  entirely  unsupported  by  the 
evidence,  or  that  the  court  erroneously  instructed  the  jury 
in  this,  state  erroneous  instruction]. 

[Date.]  By  the  Court: 

0 P ,  Judge. 

2570.  Same,  after  judgment  entered. 

[Recitals  as  in  preceding  orders.] 

ORDERED  that  the  verdict  herein  and  the  judgment  en- 
tered thereon  on  the  ....  day  of ,  19. .,  be  and  they 

are  hereby  set  aside  and  vacated  on  the  ground  that  [state 
grounds],  the  costs  of  the  former  trial  to  abide  the  event  of  the 
action  [or,  upon  payment,  state  terms  as  in  preceding  form]. 

[Date,]  By  the  Court: 

0....  P ,  Judge. 

2571.  Order  for  new  trial  for  excessive  damages. 

[Recitals  as  in  preceding  forms.] 

ORDERED:  That  said  verdict  be  and  is  hereby  set 
aside  and  the  said  motion  for  a  new  trial  be  and  is  granted 
[the  costs  to  abide  the  event],  on  the  ground  of  excessive 
damages,  unless  the  plaintiff,  within  ....  days,  file  a  stipula- 
tion consenting  to  remit  from  said  verdict  the  sum  of 

dollars,  and  take  judgment  for  the  sum  of dollars 

with  costs. 

In  case  of  such  remission,  the  motion  is  denied. 

By  the  Court: 
0. . . .  P . . . . ,  Circuit  Judge. 

•  See  note  7. 


Chapter  CXL.]  1767  [Form  2572. 

2572.    Proposed  bill  of  exceptions,  jury  trial." 

[Title.] 

Be  it  remembered  that  this  action  was  brought  on  for 

trial  at  the term  of  said  court,  at  the  court  house,  in 

the  city  of ,  on  the  ....  day  of ,  19. .,  be- 
fore the  court,  Hon.  J. . . .  K circuit  judge,  presiding, 

and  a  jury,  L. . . .  M.  , . .,  Esq.,  appearing  for  plaintiff  and 
0 . . . .  P . . . . ,  Esq.,  for  defendant. 

The  case  being  called  for  trial,  before  entering  upon  ex- 
amination of  witnesses,  the  plaintiff  moved  for  leave  to 
amend  his  complaint,  by  inserting  therein  the  following 
averments  [here  insert  amendment  offered]. 

The  defendant,  by  counsel,  opposed  such  motion  on  the 
grounds  [state  grounds  of  objections  as  for  instance,  that  it 
substantially  changed  the  cause  of  action]. 

Which  said  motion  the  court  granted  and,  thereupon,  the 
defendant  duly  excepted. 

The  defendant  then  moved  for  a  continuance  on  the 
ground  that  he  had  been  taken  by  surprise  by  the  said  amend- 
ment, and  filed  the  following  affidavit  in  support  of  such  mo- 
tion [insert  affidavit]  which  motion  the  court  denied,  and  the 
defendant  duly  excepted. 

The  plaintiff  then,  to  maintain  the  issue  on  his  part,  called 
as  a  witness  E . . . .  F . . . .,  who  was  duly  sworn. 

•  The  purpose  of  the  bill  of  ex-  direction  of  the  court.    Iowa  Ann. 

captions  is  to  incorporate  in  the  Code  1907  sec.  3749. 
record    a    narrative    of    the    trial  The  statutes  of  die  other  states 

with    the    rulings    and    exceptions  covered  by  this  work,  referring  to 

occurring  therein  and  which  would  this  subject,  are  as  follows:    Ariz, 

not  otherwise  be  a  part  of  the  record  R.  S.  1913  sec.  603  et  seq.;  Ark.  Dig. 

of  the  case.    This  form  is  prepared  of  Stats.  1904  sec.  6221  et  seq.;  Cal. 

specially    with    reference    to    the  C.  C.  P.  1906  sec.  646  e/se^.;  Colo, 

statutes  and  court  rules  of  Wiscori-  Code  Ann.    1911   sec.  419  et  seq.; 

sin    (Wis.    Stats.    1913    sec.    2873;  Idaho  Rev.  Codes  1908  sec.  4426 

Cir.  Ct.  Rule   XXIII),    but    may  et  seq.;  Kans.  Gen.  Stats.  1909  sec. 

in  substance  be   utilized   in   other  6164  et  seq.;  Mont.  Rev  Codes  1907 

states  covered  bv  this  work.   Minn.  sec.  6783  et  seq.;  Mo.  R.  S.  1909  sec. 

Gen.  Stats.  1913"  sec.  7832;  N.  Dak.  2028  et  seq.;  Okla.  Comp.  Laws  1909 

Rev.  Codes  1905  sec.  70.58;  S.  Dak.  sec.  5818  et  seq.;  Oregon  Laws  1910 

C.  C.  P.  1908  sec.  296;  Neb.  R.  S.  sec.  169e/ se?.;Tex.  Civ.  Stats.  Ann. 

1913  sec.  7876  et  seq.     In  Iowa  the  1913  art.  2058  et  seq.;  Utah  Comp. 

bill   of   exceptions   is  abolished  in  Laws  1907  sec.  3282  et  seq.;  Wash, 

equity  cases  and  practically  super-  Rem,  and  Bal.  Code  1910  sec.  381 

seded  in  all  other  cases  where  the  et  seq.;  Wyo.  Comp.  Stats.  1910  sec. 

testimony  is  taken  in  shorthand  by  4594  et  seq. 


Form  2572.]  1768  [Chapter  CXL. 

Thereupon  the  defendant  objected  to  the  reception  of  any 
evidence  under  the  complaint  for  the  reason  that  the  com- 
plaint does  not  state  facts  sufficient  to  constitute  a  cause  of 
action,  which  objection  was  overruled  by  the  court  and  the 
defendant  duly  excepted. 

The  witness  then  testified  as  follows  [here  insert  testimony 
in  condensed  narrative  form  until  a  question  which  was  ob- 
jected to  is  reached,  when  it  should  be  inserted  in  full  with  rul- 
ing and  exception  as  follows]: 

Q.     [Insert  question.] 

To  which  question  the  defendant  objected  as  immaterial 
[state  all  grounds  of  objection  fully  as  made],  which  objection 
was  overruled  and  the  defendant  excepted. 

A.     [Insert  answer  in  full.] 

Defendant  then  moved  to  strike  out  said  answer  for  the 
reason  that  [state  reason],  which  motion  was  overruled  and  de- 
fendant excepted.  [Proceed  in  like  manner  with  the  direct 
examination  of  the  witness.] 

Upon  cross-examination  the  witness  testified  [proceed  as 
with  the  direct  examination,  also  with  the  redirect  examina- 
tion if  any  and  with  the  plaintiff's  other  witnesses]. 

The  plaintiff  then  rested. 

The  defendant  thereupon  moved  for  judgment  of  non- 
suit on  the  ground  that  the  evidence  failed  to  prove  the  plain- 
tiff's cause  of  action,  which  motion  was  overruled  by  the 
court  and  the  defendant  duly  excepted  [or,  which  motion  was 
granted  and  the  plaintiff  duly  excepted]. 

The  defendant,  to  maintain  the  issue  on  his  part,  called  as 
a  witness  G. . . .  F. . . .,  and  offered  to  prove  by  said  witness 
[here  state  what],  to  which  plaintiff,  by  counsel,  objected. 
The  court  sustained  the  objection  and  the  defendant  duly 
excepted. 

The  said  witness  then  testified  as  follows  [here  state  testi- 
mony and  rulings  as  in  case  of  plaintiff's  witnesses]. 

The  said  witness  upon  cross-examination  testified  as  fol- 
lows [here  state  same]. 

The  defendant  then  rested. 

The  plaintiff,  to  further  maintain  the  issue  on  his  part,  then 
called  J . . . .  K . . . . ,  who  being  sworn,  testified  [here  insert 
testimony  with  objections  and  exceptions]. 


Chapter  CXL.]  1769  [Form  2572. 

The  testimony  then  closed.  The  foregoing  is  all  the  evi- 
dence given  on  both  sides.^° 

[Or,  when  the  testimony  is  only  in  part  given,  the  bill  should 
state:  The  foregoing  is  all  the  testimony  given  on  both  sides, 
necessary  to  present  the  questions  of  law  raised  upon  the 
trial.] 

The  defendant  then,  before  argument  to  the  jury,  re- 
quested that  the  jury  be  directed  to  fmd  a  special  verdict,  and 
submitted  the  following  proposed  questions  for  such  verdict 
[insert  proposed  questions].  Thereupon  the  court  directed 
that  the  following  questions  be  submitted  to  the  jury  for  a 
special  verdict  [insert  questions].  The  defendant  objected  to 
the  submission  of  the  first  question  of  said  special  verdict  for 
the  reason  [state  reason],  which  objection  was  overruled  by 
the  court  and  the  defendant  excepted. 

The  plaintiff  [or  defendant]  then  asked  the  court  to  in- 
struct the  jury  as  follows  [here  insert  instructions  asked, 
separately,  and  state  at  the  end  of  each  instruction  refused], 
which  instruction  the  court  refused  and  the  plaintiff  [or 
defendant]  duly  excepted. 

The  court  then  instructed  the  jury  as  follows  [here  insert 
charge  in  separate  propositions  inserting  at  the  foot  of  each 
proposition  to  which  exception  was  taken],  to  which  instruction 
the  defendant  duly  excepted. 

The  jury  then  retired,  and  after  deliberation  returned  into 
court  with  their  verdict,  which  is  of  record,  wherein  they 
found  for  the  plaintiff  and  assessed  his  damages  at  the  sum 

of dollars   [or,  if  the  verdict  is  special,   set  it  forth  in 

detail]. 

And  afterwards,  at  the  said  term,  defendant  moved  for  a 
new  trial,  on  the  judge's  minutes,  on  the  ground: 

1.  That  the  verdict  is  contrary  to  law. 

2.  That  the  verdict  is  contrary  to  the  evidence. 

3.  [Set  forth  other  grounds,  if  any.] 

Which  motion  the  court  overruled,  and  thereupon  the  de- 
fendant duly  excepted. 

"The  bill  must  be  certified  to  sustained  by  the  evidence.     This 

contain  all  the  evidence  in  case  it  statement  may  also  properly  be  in- 

be  desired  by  the  appellant  to  re-  serted    in    the    certificate    of    the 

verse  the  judgment  on  the  ground  judge  at  the  close  of  the  bill, 
that  the  verdict  or  finding  is  not 


Forms  2573,  2574.]  1770  .  [Chapter  CXL. 

And  because  the  foregoing  evidence,  rulings,  instructions 
and  exceptions  do  not  appear  of  record,  I,  the  undersigned, 

the judge,  who  tried  said  action,  have,  on  due  notice, 

settled  and  signed  this  bill  of  exceptions  to  the  end  that  the 
same  be  made  part  of  the  record  herein,  this   ....  day  of 

,  19. .  [and  I  certify  that  so  much  of  said  testimony 

as  appears  herein  in  the  form  of  question  and  answer  so  ap- 
pears by  my  direction  in  that  form  because  I  deemed  it  ma- 
terial that  it  should  so  appear]. ^^ 

0 P...., Judge. 

Judicial  Circuit. 

[The  bill  should  be  folioed.  Circuit  court  rules  Wis.  X. 
Each  line  should  be  numbered,  so  that  proposed  amendments 
may  specifically  refer  to  the  line  to  be  amended.] 

2573.  Notice  served  with  proposed  bill  of  exceptions. 

[Title.] 

SIR:  Please  take  notice  that  the  within  [or,  annexed]  is  a 
copy  of  the  bill  of  exceptions,  proposed  on  behalf  of  the  de- 
fendant in  this  action,  and  that  a  copy  of  the  reporter's  notes 
taken  at  the  trial,  and  transcribed  in  longhand  are  also  de- 
livered to  you  herewith." 

[Date.] 

To  G....  H....,  Esq.,  J....    K 

Plaintiff's  Attorney.  Defendant's  Attorney. 

2574.  Reporter's   certificate    (Wis.   circuit   court   rule 

XXIII). 

[Title.] 

I,  L M . . . .,  phonographic  reporter  of  the   

circuit  court,  state  of  Wisconsin,  duly  appointed  and  quali- 
fied, do  hereby  certify  that  the  foregoing  is  a  correct  trans- 
script,  in  long  hand,  of  my  notes  taken  upon  the  trial  of  said 
action  and  that  the  same  contains  a  full  and  complete  tran- 
script of  the  evidence  and  all  other  matters  relating  to  said 
action  contained  in  said  notes. 

[Date.]  L....  M...., 

Official  Reporter. 

"  See    circuit    court    rules    Wis.  graphic  reporter's  notes  must  be  de- 

XXIII.  livered  to  the  opposing  party  with 

^^  In  Wisconsin  a  certified  tran-  the  proposed  bill  of  exceptions.    C. 

script,  in  longhand,  of  the  phono-  C.  Rule  XXIII. 


Chapter  CXL.]  1771  [Forms  2575-2577. 

2575.  Proposed  amendments  to  bill  of  exceptions. 

[Title.] 

SIR:  Please  take  notice  that  the  following  amendments 
are  proposed  on  the  part  of  the  plaintiff  to  the  bill  of  excep- 
tions, proposed  by  the  defendant,  to-wit: 

First.     On  page   ....,  line   strike  out  the  words 

[state  words]. 

Second.  On  page ,  line  . . . .,  and  at  the  end  of  sen- 
tence insert  the  following  [state  what]. 

Third.  On  page  . . . . ,  line  . . . . ,  strike  out  the  words 
[state  what],  and  insert  in  place  thereof  the  words  [state  them], 

[Date.] 
To  J....  K....,  Esq.,  G....  H...., 

Defendant's  Attorney.  Plaintiff's  Attorney. 

2576.  Notice  of  settlement  of  bill  of  exceptions. 

[Title.] 

SIR:  Please  take  notice  that  the  defendant's  proposed 
bill  of  exceptions  in  this  action  with  the  amendments  thereto 
proposed  by  the  plaintiff,  will  be  presented  for  settlement  to 
the  Hon.  0 . . . .  P. . . .,  the  judge  who  tried  this  action,  at 

his  chambers,  in  the  ....  of ,  in county,  on 

the  ....  day  of  .......  19. .,  at  ... .  o'clock  . .  M. 

[Date.]  J....  K...., 

To  G. . . .  H. . . .,  Esq.,  Attorney  for  Defendant. 

Attorney  for  Plaintiff. 

2577.  Certificate  to  bill  of  exceptions  or  statement  of 

facts  (Wash.  Rem.  and  Bal.  Code  1910  sec.  391). 

[Venue.] 

On  this  ....  day  of ,  19 . .,  pursuant  to  due  notice  of 

application  for  settlement  and  certification  of  the  statement 
of  facts  in  the  foregoing  entitled  action,  the  parties  to  said 
action  appearing  by  their  respective  attorneys  of  record 
therein,  the  undersigned  J. . . .  K. . . .,  judge  of  said  court 
presiding  at  the  trial  of  said  action,  now  hereby  settles  the 
annexed  and  foregoing  STATEMENT  OF  FACTS  as  the 
statement  of  facts  in  said  action,  and  hereby  certifies: 

That  the  matters  and  proceedings  embodied  in  the  an- 
nexed and  foregoing  statement  of  facts,  together  with  the 
depositions,  exhibits  and  other  written  evidence  introduced 


Form  2577.]  1772  [Chapter  CXL. 

or  offered  in  evidence  upon  the  trial  of  said  action  and 
filed  in  said  cause,  and  now  marked  and  identified  by  me  as 
follows  [mark  same]  are  matters  and  proceedings  occurring 
in  said  cause,  and  the  same  are  hereby  made  a  part  of  the 
record  therein;  and  that  the  same  contain  all  the  testimony 
on  which  said  cause  was  tried;  evidence  produced  or  offered 
by  either  of  the  parties  to  said  action,  together  with  all  the 
objections  and  exceptions  of  counsel  taken  to  the  reception  or 
rejection  of  testimony,  and  the  rulings  of  the  court  thereon; 
all  documents  and  instruments  in  writing  introduced  or  of- 
fered in  evidence;  and  all  the  material  facts,  matters  and 
proceedings  heretofore  occurring  in  said  cause,  and  not 
already  a  part  of  the  record  therein;  and  the  clerk  is  hereby 
ordered  to  attach  to  the  said  statement  all  of  the  said  original 
exhibits  on  file  in  said  cause  as  herein  identified,  including 
the  following  original  papers  in  said  cause  which  may  be 
important  to  a  correct  decision  of  the  appeal,  and  which  the 
clerk  of  this  court  is  ordered  to  transmit  to  the  clerk  of  the 
supreme  court:  [have  papers]. 

Done  at ,  19. . 

J. . . .  K. . .  .f 

Judge. 


CHAPTER  CXLI. 


CONTEMPT  PROCEEDINGS. 


2578.  Order  of  summary  conviction 

of  a  witness  for  criminal 
contempt  in  refusing  to 
answer  a  question  in  the 
immediate  presence  of  the 
court.  (Wisconsin  and 
North  Dakota). 

2579.  The  same,  for  a  breach  of  the 

peace  or  disturbance  in 
open  court. 

2580.  Commitment     for     criminal 

contempt  committed  in 
immediate  view  of  the 
court.  (Wisconsin  and 
North  Dakota). 

2581.  Affidavit  for  order  to  show 

cause  why  party  should 
not  be  punished  criminally 
for  contempt  not  com- 
mitted in  presence  of  the 
court.     (Wisconsin). 

2582.  The  same,  to  punish  crimi- 

nally the  publication  of  a 
false  report  of  judicial 
proceedings.  (Wisconsin 
and  North  Dakota). 

2583.  Order    to    show     cause    in 

criminal  contempt,  based 
on  either  of  last  two 
affidavits 

2584.  Attachment    for    arrest    of 

contemner  in  criminal  pro- 
ceedings for  contempt. 

2585.  Order  of  conviction  for  crim- 

inal contempt  not  com- 
mitted in  presence  of  the 
court.  (Wisconsin  and 
North  Dakota). 
25S6.  Commitment  for  criminal 
contempt  not  committed 
in  presence  of  the  court. 
(Wisconsin  and  North 
Dakota). 


2587.  Order   of   summary   convic- 

tion, in  civil  contempt 
proceedings,  of  witness  for 
refusing  to  answer  proper 
questions,  in  the  presence 
of  the  court.     (Wisconsin). 

2588.  Affidavit   in   civil    contempt 

proceedings,  showing 
failure  to  comply  with 
court's  order,  for  payment 
of  money.     (Wisconsin). 

2589.  Warrant  of  commitment  in 

civil  contempt  proceedings 
for  failure  to  pay  money. 
(Wisconsin). 

2590.  Affidavit  on  which  to  move 

for  order  to  show  cause,  or 
attachment,  in  civil  con- 
tempt proceedings;  general 
form.  (Wisconsin  and 
Minnesota). 

2591.  The  same,   for  violation   of 

injunctional  order. 

2592.  The  same,  for  attachment  of 

witness  for  not  obeying  a 
subpoena. 

2593.  Warrant   of    arrest   of   con- 

temner.    (Minnesota). 

2594.  Attachment  for  witness  dis- 

obeying a  subpoena. 
(Wisconsin). 

2595.  Attachment     for     juror     or 

witness.     (Two  forms). 

2596.  Writ    of    habeas    corpus    to 

bring  up  contemner 
already  in  custody  by  vir- 
tue of  other  process.  (Wis- 
consin    and    Minnesota). 

2597.  Order  that  interrogatories  be 

filed,  after  attachment. 
(Wisconsin  and  North 
Dakota). 


Contents.] 


1774 


[Chapter  CXLI. 


2598.  Interrogatories    to    be    filed 

under  last  preceding  order. 
(Wisconsin  and  North 
Dakota). 

2599.  Answers    to    interrogatories 

in  contempt  proceedings. 
(Wisconsin  and  North 
Dakota). 

2600.  Judgment   of   conviction   in 

civil  contempt  proceedings 


and  directing  payment  of 
fine.     (Wisconsin). 

2601.  The  same,  where  indemnity 

for  actual  loss  is  ordered 
to  be  paid  instead  of  a 
fine. 

2602.  The  same,  where  imprison- 

ment is  ordered. 

2603.  Commitment  for  civil  con- 

tempt. 


The  power  to  punish  as  contempt  any  act  which  tends  to 
obstruct  the  course  of  justice  or  prejudice  the  trial  of  an  ac- 
tion or  proceeding  in  court  is  held  to  be  inherent  in  courts  of 
general  jurisdiction.  This  power  may  be  regulated  and  the 
manner  of  its  exercise  prescribed  by  statute,  but  it  can  not 
be  wholly  taken  away  nor  substantially  impaired.  State 
ex  rel.  v.  Circuit  Court,  97  Wis.  1;  72  N.  W.  193;  Kregel  v. 
Bartling,  23  Nebr.  852;  37  N.  W.  668.  In  Wisconsin  an  act 
of  contempt  may  be  punished  either  criminally  or  civilly. 

Acts  of  contempt  which  may  be  punished  criminally  are 
enumerated  in  Wis.  Stats.  1913  sec.  2565;  when  committed 
in  the  immediate  view  and  presence  of  the  court  they  may  be 
punished  summarily  without  process,  but  in  other  cases  the 
accused  party  must  have  notice  of  the  accusation  and  time  to 
make  his  defense.  Id.  sec.  2566.  The  punishment  may  be  by 
fine  or  imprisonment  or  both.  Id.  sees.  2567,  2568.  This 
proceeding  is  brought  to  vindicate  the  dignity  of  the  court 
and  is  to  be  prosecuted  in  the  name  of  the  state,  and  the  fine 
goes  to  the  school  fund  as  in  criminal  prosecutions. 

Acts  which  may  be  punished  civilly  are  enumerated  in 
Wis.  Stats.  1913  sec.  3477.  The  purpose  of  civil  contempt 
proceedings  is,  primarily,  to  indemnify  the  party  whose 
rights  or  remedies  have  been  defeated  or  prejudiced  by  the 
act  of  contempt,  or  to  compel  the  performance  of  a  duty 
which  may  yet  be  performed,  or  both.  A  fine  or  imprison- 
ment, or  both,  may  be  imposed,  or  if  actual  loss  or  injur>^  be 
shown  the  guilty  party  may  be  ordered  to  pay  a  sufficient 
sum  as  indemnity  to  the  injured  party  instead  of  a  fine. 
Emerson  v.  Huss,  127  Wis.  215;  106  N^  W.  518.  The  pro- 
ceedings may  be  summary  when  the  contempt  is  committed 
in  the  presence  of  the  court;  otherwise  they  are  to  be  based 
upon   affidavit   and   order  to   show   cause   or   attachment. 


Chapter  CXLI.]  1775  [Introduction. 

The  papers  should  be  entitled  in  the  action  in  which  the  con- 
tempt occurred  if  an  order  to  show  cause  be  applied  for,  but 
if  an  attachment  be  issued  the  proceeding  becomes  an  original 
special  proceeding  in  the  name  of  the  state  on  the  relation  of 
the  complainant.  '  Wis.  Stats.  1913  sec.  3481. 

In  Minnesota  no  distinction  is  preserved  by  the  statutes 
between  civil  and  criminal  contempt  proceedings;  but  con- 
tempts are  divided  into  direct  contempts,  which  are  those 
committed  in  the  immediate  view  and  presence  of  the  court, 
and  may  be  punished  summarily  without  process  or  proof; 
and  constructive  contempts,  which  are  those  not  committed 
within  the  immediate  presence  of  the  court.  Minn.  Gen. 
Stats.  1913  chap.  91;  State  ex  rel.  v.  Ives,  60  Minn.  478; 
62  N.  W.  831.  A  prosecution  for  constructive  contempt  is  be- 
gun by  affidavit  to  be  followed  by  warrant  of  arrest  or  order 
to  show  cause.  Punishment  is  by  imprisonment  or  fine  or 
both,  and  by  imposition  of  an  indemnity  to  be  paid  for  any 
actual  loss  to  the  injured  party.  Minn.  Gen.  Stats.  1913 
sees.  8363,  8364. 

In  Iowa  contempt  proceedings  are  criminal  in  their  nature 
and  governed  by  chapter  17  title  21  Iowa  Code  1897.  If 
the  contempt  be  committed  in  the  presence  of  the  court  it 
may  be  punished  summarily,  but  if  not  the  proceedings  must 
be  based  on  affidavit  and  rule  to  show  cause;  the  punish- 
ment may  be  by  fine  or  imprisonment  or  both.  Iowa  Code 
1897  sees.  4464,  4465. 

In  North  Dakota  contempts  are  classified  into  civil  and 
criminal  contempts,  substantially  similar  to  the  division 
made  in  Wisconsin,  and  the  procedure  closely  follows  the 
Wisconsin  procedure.  N.  Dak.  Rev.  Codes  1905  chap.  35 
sees.  7550-7573. 

The  South  Dakota  code  seems  to  contain  no  general  pro- 
visions governing  the  procedure  or  punishment  in  contempt 
proceedings  in  courts  of  record.  There  are,  however,  num- 
erous sections  providing  for  punishment  as  for  contempt  upon 
the  failure  of  persons  to  obey  summons,  subpoena  or  other 
orders  of  the  court,  and  in  some  instances  the  procedure  and 
punishment  is  specified.    S.  Dak.  C.  C.  P.  1908  sees.  494,  495. 

In  Nebraska  contempts  are  regulated  by  Neb.  R.  S.  1913 
sees.  8236-8238.  The  proceedings  are  held  to  be  in  their 
nature  criminal,  direct  when  committed  in  presence  of  the 
court  and  constructive  when  not  so  committed.     Proceed- 


Introduction.]  1776  [Chapter  CXLI. 

ings  for  constructive  contempts  must  be  commenced  by  in- 
formation under  oath  or  affidavit  stating  positively  all  the 
necessary  facts,  as  in  a  prosecution  for  crime. 

In  California,  Idaho,  Montana  and  Utah,  the  statutes 
regulating  contempts  are  practically  identical. ^  All  con- 
tempts whether  civil  or  criminal  in  their  nature,  direct  or 
constructive,  are  grouped  together.  In  the  remaining  states 
the  statutes  are  varied  and  they  will  be  found  cited  in  the 
note. 2  Wyoming  provides  no  special  procedure  but,  like 
South  Dakota,  simply  specifies  certain  acts  of  disobedience 
to  court  orders  which  constitute  contempts  and  may  be 
punished. 

The  question  whether  a  given  contempt  proceeding  is  civil 
or  criminal  in  its  character  is  often  doubtful;  however,  in  a 
general  way  the  true  rule  would  seem  to  be  that  when  the  pro- 
ceeding is  brought  to  vindicate  simply  the  dignity  of  the 
court  or  punish  a  wrong  to  the  public  it  is  essentially  a  crim- 
inal proceeding,  but  if  brought  on  the  relation  of  a  private 
party  to  compel  performance  of  an  order  of  the  court  in  a 
civil  action  or  obtain  indemnification  for  an  act  which  has 
impeded,  defeated  or  impaired  his  rights  in  the  action  it  is  a 
civil  proceeding. 

The  question  as  to  the  proper  method  of  entitling  the  pro- 
ceeding is  also  much  confused  in  the  books.  In  the  absence 
of  statutory  direction  on  the  subject  it  would  seem  that,  if 
the  object  of  the  proceeding  is  punishment  for  the  public 
wrong  it  should  be  brought  in  the  name  of  the  state;  if  to 
compel  the  performance  of  an  act  for  a  party  in  a  civil  ac- 
tion or  the  indemnification  of  such  a  party  it  should  be  en- 
titled in  the  civil  action  out  of  which  the  alleged  contempt 
arose.    9  Cyc.  p.  36. 

It  is  not  probable  that  any  court  would  reverse  a  con- 
viction for  contempt  because  the  proceedings  were  wrongly 

iCal.  C.  C.  P.  1906  sec.  1209-  355-368;   Kans.   Gen.   Stats.   1909 

1222;  Idaho  Rev.  Codes  1908  sec.  sec.  2483-2488;  Mo.  R.  S.  1909  sec. 

5155-5168;  Mont.  Rev.  Codes  1907  3881-3885;  Okla.  Comp.  Laws  1909 

sec.  7309-7322;  Utah  Comp.  Laws  sec.  2227-2230;  Oregon  Laws  1910 

1907  sec.  3358.  sec.  670-684;  Tex.  Ann.  Civ.  Stats. 

2  Ariz.  R.  S.  1913  sec.  1798-1804;  1913   art.    1708;  Wash.  Rem.  and 

Ark.  Dig.  of  Stats.  1904  sec.  719-  Bal.  Code  1910  sec.  1049-1062. 
730;    Colo.    Code   Ann.    1911    sec. 


Chapter  CXLL] 


1777 


[Form  2578. 


entitled,  provided  the  substantial  rights  of  the  convicted 
party  have  been  preserved. 

In  Oregon  and  Washington  the  statutes  provide  that  "in 
the  proceeding  for  contempt  the  state  is  plaintiff"  and  that 
in  all  cases  of  public  interest  the  proceeding  may  be  pros- 
ecuted by  the  prosecuting  attorney  on  behalf  of  the  state, 
and  in  all  cases  where  the  proceeding  is  commenced  upon  the 
relation  of  a  private  party  such  party  shall  be  deemed  a  co- 
plaintiff  with  the  state. 

In  Colorado  it  is  held  that  the  statutory  provisions  do  not 
cover  crimiinal  contempts  but  that  the  latter  are  still  gov- 
erned by  common  law  principles.^  In  Oklahoma  all  the 
statutory  provisions  are  contained  in  the  chapter  on  crimes 
and  their  punishment,  and  the  treatment  indicates  that  the 
proceeding  is  regarded  as  criminal  in  its  nature. 


2578.  Order  of  summary  conviction  of  a  witness  for 
criminal  contempt  in  refusing  to  answer  a  ques- 
tion in  the  immediate  presence  of  the  court 
(Wis.  Stats.  1913  sees.  2565,  2566;  N.  Dak.  Rev. 
Codes  1905  sec.  7550,  7551).* 

STATE  OF 

In  ....  Court  ....  County. 


State  of 


A. 


vs. 


B . . . ., 


Plaintiff, 


Defendant. 


At  a  general  term  of  said  court  begun  and  held  in  the 

court  house  in  the  city  of on  the  ....  day  of 

,  19 . . ,  and  on  the  ....  day  of ,  19 , . 

President,  Hon.  J K Circuit  [or  District] 

Judge,  Presiding. 


*  People  vs.  News-Times  Co.  35 
Cal.  359;84Pac.  912. 

*  This  form  and  the  two  follow- 
ing forms,  though  specially  drawn 
to  meet  the  requirements  of  the 
codes    of    Wisconsin     and     North 

112 


Dakota,  will  doubtless  serve,  with 
slight  changes,  in  other  states  for 
the  punishment  of  contempts  com- 
mitted in  the  immediate  view  of 
the  court. 


Form  2579.]  1778  [Chapter  CXLI. 

On  this day  of ,  19..,  at  the  hour  of  .... 

o'clock,  the  said  court  being  in  session  and  the  action  of 

L M ....  vs.  0 ....  P ... .  being  then  on  trial,  the  above 

named  A. . . .  B . . . .  *  was  duly  called  as  a  witness  for  the 
plaintiff  in  said  action  and  duly  sworn,  and  was  as  such  wit- 
ness asked  the  following  question  [insert  question],  and  the 
court  having  ruled  that  said  question  was  competent  and 
proper  and  having  ordered  the  said  A . . . .  B .  . . .  to  answer 
the  same,  he,  the  said  A. . . .  B. . . .,  then  in  the  immediate 
view  and  presence  of  the  court,  contumaciously  refused,  and 
still  refuses,  to  answer  the  said  question,  the  same  being  a 
proper  and  legal  interrogatory;  and  the  said  A. . . .  B. . . . 
being  now  still  present  in  court;  it  is  now 

ORDERED  AND  ADJUDGED  that  he  the  said  A. . . . 
B . . . .  is  guilty  of  a  criminal  contempt  of  court  in  so  con- 
tumaciously refusing  to  answer  said  question;  and  it  is 
further  adjudged  that  the  said  A. . . .  B . . . .,  as  punishment 
for  said  contempt,  be  imprisoned  in  the  jail  of  the  county  of 

for  the  term  of  ....  days  [and  pay  a  fine  in  the  sum 

of dollars,  and  that  he  be  committed  to  the  jail 

of county  until  said  fine  is  paid  or  until  he  be  dis- 
charged therefrom  according  to  law]. 

By  the  Court: 
J....   K Judge. 

2579.    The  same,  for  a  breach  of  the  peace  or  disturbance 
in  open  court. 

[Proceed  as  in  last  preceding  form  to  the  *  and  then  continue] 
did  then  and  there  in  open  court  and  in  the  immediate  view 
and  presence  of  the  court  commit  an  assault  and  battery  up- 
on the  person  of  one  C . .  . .  D ....  [or  did  then  and  there  m.ake  a 
disturbance  in  court  by  loudly  and  repeatedly  shouting  in 
profane  and  opprobrious  language,  or  otherwise  describe  the 
disturbance,  breach  of  the  peace  or  disorderly  proceeding,  ac- 
cording to  the  fact],  and  did  thereby  wilfully  interrupt  the 
business  of  the  court  and  impair  the  respect  due  to  its  author- 
ity, and  the  said  A B being  now^  still  present  in 

court,  it  is  now 

ORDERED  AND  ADJUDGED,  etc.  [continue  as  in  last 
preceding  form.] 


Chapter  CXLL]  1779  [Forms  2580,  2581. 

2580.  Commitment  for  criminal  contempt  committed  in 

immediate  view  of  the  court  (Wis.  Stats.  1913 
sees.  2567,  2568;  N.  Dak.  Rev.  Codes  1905  sec. 
7551). 

THE  STATE  OF 

to  the  Sheriff  of County, 

GREETING:    Whereas,   on   the    ....    day  of    , 

19. .,  in  an  action  then  pending  and  on  trial  in  the 

court  for county,  at  the  court  house,  in  the  city  of 

in county,  wherein  L . . . .  M . . . .  is  plaintiff 

and  0 . . . .  P . . . .  is  defendant,  A . . . .  B . . . .  was  called  and 
sworn  as  a  witness  [here  recite  facts  as  in  the  last  preceding 
order,  and  also  the  adjudication  of  the  court  and  continue]; 

And  whereas  the  said  A. . . .  B . . . .  has  not  paid  the  said 
fine  so  imposed  upon  him  and  still  refuses  to  pay  the  same, 

Now  therefore  we  command  you  that  you  take  the  body  of 
the  said  A . . . .  B . . . .  and  safely  keep  him  in  custody  in  the 

common  jail  of  the  county  of until  the  said  A. , . . 

B . . . .  shall  pay  the  said  fine  and  costs  or  shall  be  thence  dis- 
charged according  to  law,  not  exceeding,  however,  the  term 
of  thirty  days  from  this  date  [or,  if  the  punishment  be  by  im- 
prisonment, substitute  after  the  command  to  imprison,  for  the 
term  of  ....  days  from  this  date  or  until  he  be  thence  dis- 
charged according  to  law]. 

Witness,  the  Hon.  J....    K judge  of  our   

court    for    the    county    of 

,  at  the  court  house 

in  the    ....   of   in 

[SEAL.]  said  county,  this  ....  day 

of ,19.. 

v^ .  •  • .  XV . . . . ,  i^iieri^. 

2581.  Affidavit   for   order  to   show  cause  why   party 

should  not  be  punished  criminally  for  contempt 
not  committed  in  presence  of  the  court  (Wis. 
Stats.  1913  sec.  2565). 

STATE  OF 

Court  for County. 


Form  2582.] 


1780 


[Chapter  CXLI. 


State  of  

vs. 
A....  B 


Plaintiff, 


Defendant. 


[Venue.] 

Y. . . .  Z being  first  duly  sworn  says:* 

That  on  the  ....  day  of ,  19. .,  in  an  action  pend- 
ing in  said  court,  wherein  L . . . .  M . . . .  was  plaintiff  and 
0 . . . .  P . . . .  defendant,  an  order  was  duly  made  by  this 
court,  of  which  a  copy  is  hereto  annexed  marked  Exhibit  A, 
requiring  the  above  named  defendant  to  [here  specify  act 
required]. 

That  on  the  ....  day  of ,  19 . .,  the  said  order  was 

duly  served  on  said  defendant,  at  said  county,  by  deliver- 
ing to  him  personally  a  true  copy  thereof,  and  at  the  same 
time  exhibiting  to  him  the  said  original  order  aforesaid  with 
the  signature  of  the  judge  of  said  court  appended  thereto  as 
more  fully  appears  by  the  afTidavit  of  service  indorsed  on  said 
order  and  on  file  in  this  court  [or  attached  hereto  and  marked 
Exhibit  B]. 

That  said  A . . . .  B . . . .  has  wilfully  and  contumaciously 
refused  and  still  refuses  to  obey  said  order  in  this,  to-wit 
[state  the  act  or  failure  to  obey]. 

That  this  application  is  made  for  the  purpose  of  obtain- 
ing an  order  to  show  cause  why  said  A ....  B ...  .  should  not 
be  punished  as  for  criminal  contempt. 

Y....   Z.... 
[Jurat.] 

2582.  The  same,  to  punish  criminally  the  publication  of 
a  false  report  of  judicial  proceedings  (Wis. 
Stats.  1913  sec.  2565;  N.  Dak.  Rev.  Codes  1905 
sec.  7550). 

[Commence  as  in  last  preceding  form  to  the  *  and  continue]: 

That  on  the   ....  day  of ,  19.  .,  a  certain  action 

wherein  L . .  . .  M . . . .  was  plaintiff  and  0 .  . . .  P .  . . .  was 
defendant,  was  pending  in  the  said  court  and  was  brought  on 


Chapter  CXLL]  1781  [Form  2583. 

for  trial  and  tried  before  said  court  at  the  court  house  in  the 
city  of in  said  county. 

That  the  defendant  A . . . .  B . . . .  then  was  and  still  is  the 
publisher  and  proprietor  of  a  certain  daily  newspaper  of 
large  circulation  called  the  N. . . .  Z. . . .,  which  was  and  still 

is  published  at  the  said  city  of ,  and  that  the  said 

A . . . .  B . . . .  on  the  ....  day  of ,  19 . . ,  caused  to  be 

printed  and  published  in  his  said  newspaper  a  pretended  re- 
port of  the  proceedings  of  said  court  upon  said  trial,  in  the 
following  words  [insert  copy  of  report]. 

That  the  said  pretended  report  was  and  is  a  grossly  false 
and  inaccurate  report  of  the  proceedings  upon  said  trial,  in 
this  [here  state  particulars  in  which  the  report  is  false  or  in- 
accurate, negativing  the  truth  of  the  report  as  to  each  particular 
in  which  it  was  erroneous]. 

That  the  falsity  and  inaccuracy  of  said  report  in  the 
particulars  aforesaid  was  well  known  to  the  defendant  at 
the  time  of  said  publication,  and  that  the  said  defendant 
wilfully  published  the  same. 

That  this  application  is  made,  etc.  [conclude  as  in  last  pre- 
ceding form]. 

2583.    Order  to  show  cause  in  criminal  contempt,  based 
on  either  of  last  two  affidavits. 

[Title  and  caption  as  in  first  form  in  this  chapter.] 
On  reading  and  filing  the  afTidavit  of  Y .  .  .  .  Z . . . ., 
ORDERED   that    the   above   named   defendant   A..., 

B show  cause  before  this  court  at  the  court  house  in  the 

city  of in  said  county  on  the   ....  day  of , 

19. .,  at  ....  o'clock  in  the  ....  noon  of  said  day,  or  as  soon 
thereafter  as  counsel  can  be  heard,  why  he  should  not  be 
punished  as  for  contempt  for  his  misconduct  in  failing  to 
obey  the  order  of  said  court  as  set  forth  in  the  said  affidavit 
[or  otherwise  state  the  act  of  contempt  according  to  the  fact]. 

Let  this  order  and  a  true  copy  of  said  affidavit  be  served 
on  said  A . . . .  B . . . .  at  least  ....  days  before  the  time  here- 
in fixed  for  hearing. 

By  the  Court: 

J. . . .  K Judge. 


Forms  2584,  2585.]  1782  [Chapter  CXLI. 

2584.    Attachment  for  arrest  of  contemner  in  criminal 
proceedings  for  contempt. 

STATE  OF ?. 

Court    County, 


The  State  of  . 

vs. 
A....B...., 


Plaintiff, 


Defendant. 


THE  STATE  OF 

to  the  Sheriff  of County. 

GREETING:    We  hereby  command  you  that  you  attach 

A. . . .  B . . . .  and  have  his  body  before  our  said court, 

at  a  term  thereof  to  be  held  at  the  court  house  in  the  city  of 

,  in  said  county,  on  the  ....  day  of ,  19 . .,  at 

....  o'clock  A.  M.  of  said  day,  then  and  there  to  make  an- 
swer concerning  a  certain  contempt  which  it  is  alleged  he  has 
committed  against  said  court  in  wilfully  refusing  to  obey  that 
certain  order  of  said  court  [describe  order]  requiring  him  to 
[state  act  required  and  disobeyed]  which  order  was  duly  served 
upon  him,  also  to  answer  as  to  such  other  matters  as  may  be 
then  and  there  laid  to  his  charge,  and  to  abide  and  perform 
the  order  of  the  court  made  thereon. 

Witness,  etc.  [conclude  as  in  Form  2580], 

2585.  Order  of  conviction  for  criminal  contempt  not 
committed  in  presence  of  the  court  (Wis.  Stats. 
1913  sec.  2567;  N.  Dak.  Rev.  Codes  sec.  5932). 

[Title  and  caption  as  in  first  form  in  this  chapter.] 

The  order  dated   19..,  requiring  the  defendant 

A . . . .  B . . .  to  show  cause  before  this  court  why  he  should 
not  be  punished  as  for  a  criminal  contempt  for  his  miscon- 
duct in  [here  specify  act  of  contempt],  coming  on  to  be  heard 
before  the  court,  at  the  time  fixed  therein,  and  said  defend- 
ant having  appeared  in  person,  and  by  W. . . .  X. .  . .,  his 
counsel  [or  in  case  of  arrest  of  defendant  by  an  attachment]: 
The  attachment  issued  by  this  court  in  the  above  entitled 
matter  on  the  ....  day  of ,  19 . .  requiring  the  arrest 


Chapter  CXLL]  1783  [Forms  2586,  2587. 

of  the  defendant  A ....  B ....  to  answer  for  his  misconduct  in 
[specify  act  of  contempt],  having  been  duly  returned,  and  the 
said  defendant  having  been  arrested  thereunder  and  brought 
before  the  court,  and  the  said  matter  having  been  heard  and 

tried  before  the  court,  the  said  A B . . . .  being  present 

in  person  and  by  his  counsel  W. . . .  X. . . .,  and  the  court 
having  heard  the  proofs  and  arguments  of  the  parties,  and 
given  full  opportunity  to  the  said  defendant  to  make  de- 
fense and  purge  himself  of  said  contempt, 

IT  IS  ORDERED  and  adjudged,  etc.  [continue  as  inform 
2578]. 

2586.  Commitment  for  criminal  contempt  not  compiitted 

in  presence  of  the  court  (Wis.  Stats.  1913  sec. 
2567;  N.  Dak.  Rev.  Codes  1905  sec.  7550). 

THE  STATE  OF  

to  the  Sheriff  of County. 

GREETING:  Whereas  in  certain  proceedings  for  crim- 
inal contempt  brought  and  tried  in  the court  of 

county  aforesaid,  against  A . . . .  B it  was  made  to  ap- 
pear to  the  court  that  the  said  A. . . .  B . . . .  had  been  guilty 
of  a  criminal  contempt  of  said  court,  in  this,  that  [here 
state  the  particular  circumstances  of  the  contempt]; 

And  whereas  it  was  thereupon  duly  adjudged  by  this  court 
that  the  said  A . . . .  B  . . . .  was  guilty  of  a  criminal  contempt 
and  that  he  be  punished  therefor  by  [state  terms  of  judg- 
ment] ; 

And  whereas  the  said  A. . . .  B. . . .  has  not  paid  the  said 
fine  so  imposed  on  him  and  still  refuses  to  pay  the  same; 

Now  therefore  we  command  you  that,  etc.  [conclude  as  in 
Form  2580]. 

2587.  Order  of  summary  conviction,  in  civil  contempt 

proceedings,  of  witness  for  refusing  to  answer 
proper  questions,  in  the  presence  of  the  court 
(Wis.  Stats.  1913  sees.  3477,  3478). 

[Title  and  caption  as  in  the  first  form  in  this  chapter  save 
that  it  should  be  entitled  in  the  civil  action  in  which  the  con- 
tempt occurred  instead  of  being  entitled  as  a  separate  criminal 
action.] 


Form  2588.]  1784  [Chapter  CXLI. 

[Recite  the  contempt  committed  substantially  as  in  the  first 
form  in  this  chapter  and  proceed]: 

IT  IS  ADJUDGED  and  determined  that  he,  the  said 
C . . . .  D . . . . ,  is  guilty  of  contempt  of  court  in  so  contuma- 
ciously refusing  to  answer  said  question;  that  the  said  mis- 
conduct was  calculated  to  and  actually  did  defeat,  impair, 
impede  and  prejudice  the  rights  and  remedies  of  the  plain- 
tiff in  said  action  [and  that  the  said  plaintiff  suffered  actual 
loss  and  injury  thereby  in  the  sum  of dollars]. 

And  it  is  further  adjudged  that  the  said  C . . . .  D . . . .,  as 
punishment  for  said  contempt  [pay  a  fine  in  the  sum  of 

dollars  and  costs,  or  in  case  of  actual  loss,  pay  to  the 

said  A . . . .  B . . . .  the  sum  of dollars  to  indemnify 

the  said  A . . . .  B . . . .  for  his  actual  loss  aforesaid  and  to 

satisfy  his  costs  and  expenses,  and  that  the  said  C . . . .  D . . . . 

be  committed  to  the  common  jail  of  ......  county  until  such 

fine  and  costs  or  indemnity  be  paid  or  he  be  discharged  there- 
from according  to  law]. 

[If  the  punishment  be  by  fine  and  imprisonment],  be  im- 
prisoned in  the  common  jail  of county  for  the  term 

of  ....  days  from  this  date  or  until  he  be  discharged  there- 
from according  to  law;  and  pay  a  fine,  etc.  [as  above]. 

By  the  Court: 

J . . . .  K . . . . ,  Judge. 

[The  commitment  under  the  foregoing  conviction  may  be 
substantially  as  in  Form  2580,  with  appropriate  variations 
necessitated  by  the  difference  in  the  form  of  the  judgment.] 

2588.  Affidavit  in  civil  contempt  proceedings,  showing 
failure  to  comply  with  court's  order  for  pay- 
ment of  money  (Wis.  Stats.  1913  sec.  3479).» 

STATE  OF  WISCONSIN. 
Court County. 


A....  B... 

vs. 
C...  D..., 

[Venue.] 


Plaintiff, 


Defendant. 


Chapter  CXLL]  1785  [Form  2589. 

A . .  . .  B . .  . . ,  being  first  duly  sworn,  says  that  he  is  the 
plaintiff  in  the  above  entitled  action;  that  on  the  ....  day  of 

19. .,  at ,  in  said  county,  he  served  the  order 

hereto  annexed  [or  a  copy  of  which  is  hereto  annexed]  on 
C . . . .  D . . . ,  the  defendant  in  this  action,  by  delivering  to 
him  personally  a  true  copy  thereof,  and  at  the  same  time  ex- 
hibiting to  him  the  original  order  and  the  signature  of  J ... . 
K. . . .,  the  judge  who  signed  the  said  order  thereon;  and  then 
and  there  made  personal  demand  of  the  said  C. . . .  D. . . ., 
that  he  pay  the  sum  required  to  be  paid  by  said  order:  and 
that  the  said  C . . . .  D . .  . .  then  and  there  refused  to  pay 
the  same  and  stated  to  affiant  that  he  would  not  pay  said 
sum  at  any  time;  and  affiant  further  says  that  said  sum  is 
still  unpaid. 

A....B.... 
[Jurat] 

2589.  Warrant  of  commitment  in  civil  contempt  pro- 
ceedings for  failure  to  pay  money  (Wis.  Stats. 
1913  sec.  3479). 

STATE  OF  WISCONSIN. 
Court County. 


A....  B...., 

Plaintiff, 
vs. 

C D...., 

Defendant. 


THE  STATE  OF  WISCONSIN 

to  the  Sheriff  of County. 

GREETING:     Whereas  on  the day  of  .......  19. ., 

an  order  was  duly  made  and  entered  by  this  court  in  the 

''This  form  and  the  form  imme-  once  issue  a  warrant  of  commit- 
diately  following  are  intended  to  ment  to  jail  until  the  sum  and 
meet  the  provisions  of  sec.  3479  costs  are  paid.  No  order  to  show 
"Wis.  Stats.  1913,  which  provide  cause  is  required  under  this  see- 
that  upon  proof,  by  affidavit,  of  tion,  nor  is  any  formal  judgment 
service  of  an  order  requiring  the  necessary  save  the  formal  war- 
payment  of  money  and  of  refusal  rant  of  commitment  as  in  the  form 
to  pay  the  court  or  judge  may  at  immediately  following. 


Form  2590.]  1786  [Chapter  CXLI. 

above  entitled  action  ordering  and  requiring  the  defendant 
C. . . .  D. . . .  to  pay  [state  terms];  and  whereas  it  has  been 
made  to  appear  by  the  affidavit  of  A ...  .  B . . . .  that  on  the 

day  of 19 . . ,  at the  said  A . . . .  B . . . . 

made  personal  demand  upon  said  C . . . .  D . . . .  for  the  pay- 
ment of  said  sum  of dollars  required  to  be  paid  by 

said  order  and  that  the  said  C . . . .  D . . . .  then  and  there 
contumaciously  refused  and  still  refuses  to  pay  the  same; 

And  whereas  it  appears  that  the  said  refusal  of  the  said 
C . . . .  D . .  . .  to  comply  with  the  order  of  the  court  afore- 
said was  calculated  to  and  actually  did  defeat  and  impair 
the  rights  and  remedies  of  the  said  A B . . . .  in  said  ac- 
tion, 

Now,  therefore,  we  hereby  command  you  that  you  take 
the  body  of  the  said  C. . . .  D. . .,  and  commit  him  to  the 

common  jail  of  said  county  of ,  there  to  remain  until 

such  sum  and  the  costs  and  expenses  of  the  proceedings,  to- 

wit,  the  sum  of dollars  shall  be  paid,  or  until  he  be 

thence  discharged  according  to  law. 

Witness,  the  Hon.  J. . . .  K. . , .,  judge  of  said  court,  at  the 

court  house,  in  the  city  of 

[SEAL.]  ,  in  said  county,  on 

the    ....    day   of    , 

19.. 

J....  K Clerk. 

2590.  Affidavit  on  which  to  move  for  order  to  show 
cause,  or  attachment,  in  civil  contempt  pro- 
ceedings; general  form  (Wis.  Stats.  1913  sec. 
3480;  Minn.  Gen.  Stats.  1913  sec.  8357). 

STATE  OF 

Court,    County. 


A....  B...., 

Plaintiff, 
vs. 

C...  D...., 

Defendant. 


Chapter  CXLL]  1787  [Form  2591. 

[Venue.] 

A. .  . .  B . . . .,  being  duly  sworn,  says  that  he  is  the  plain- 
tiff in  the  above  entitled  action*. 

That  [here  state  particularly  all  the  facts  necessary  to  be 
proven  to  show  that  a  civil  contempt  under  the  proper  statute 
has  been  committed  with  substantially  that  certainty  required 
in  a  criminal  complaint]. 

That  the  said  misconduct  of  the  said  C D . . .  was 

calculated  to  and  did  in  fact  defeat  and  impair  the  rights  and 
remedies  of  the  plaintiff  A . . . .  B . . . .  in  the  above  entitled 
action  [and  that  said  misconduct  caused  an  actual  loss  and 
injury  to  this  affiant  in  the  sum  of dollars]. 

That  no  previous  application  has  been  made  for  the 
punishment  of  said  misconduct  and  that  affiant  makes  this 
affidavit  for  the  purpose  of  moving  for  an  order  to  show 
cause  why  said  G . . . .  D . . . .  should  not  be  punished  as  for 
contempt. 
[Jurat.]  A B 

[In  case  the  application  is  for  an  attachment  the  affidavit 

should  be  entitled,  "State  of ,  Ex.  Rel.,  A. . . .  B . .  . ., 

Plaintiff,  v.  C D ,  Defendant."    Wis.  Stats.  1913  sec. 

3481;  N.  Dak.  Rev.  Codes  1905  sec.  7555.] 

[The  order  to  show  cause  in  Wisconsin  and  North  Dakota 
may  be  substantially  as  in  Form  2583,  entitling  it,  however,  in 
the  civil  action  in  which  the  contempt  occurred;  if  an  attach- 
ment be  issued  it  may  be  as  in  Form  2584,  entitling  it  "State 
Ex  Rel.,  A....  B....  V.  C...  D...."] 

2591.    The  same,  for  violation  of  injunctional  order. 

[Title  and  caption  as  in  last  preceding  form.] 
[Proceed  as  in  last  form  to  the  *,  and  continuing]: 
That  said  action  was   commenced   by  this  affiant  against 
the  said  defendant  and  is  now  pending  in  this  court  for  the 
purpose  of  obtaining  a  divorce  from  said  defendant  and  that 

on  the  ....  day  of ,  19.  .,  an  injunctional  order  was 

issued  out  of  this  court  in  said  action  enjoining  and  prohibit- 
ing the  said  defendant  C . . . .  D . . . .  from  imposing  any  re- 
straint upon  affiant's  personal  liberty  during  the  pendency 
of  said  action,  which  order  was  duly  and  personally  served 

upon  said  defendant  on  the  ....  day  of ,  19. .,  and 

at  the  same  time  the  original  order  with  the  signature  of 


Form  2592.]  1788  [Chapter  CXLI. 

J . . . .  K . . , . ,  who  granted  said  order,  appended  thereto,  was 
exhibited  to  said  C . . .  .  D . . . . 

That  notwithstanding  said  order  the  said  C . . . .  D . . . ,  on 

the  ....  day  of ,  19 . .,  at ,  with  force  and  arms 

made  an  assault  upon  this  affiant  and  beat  and  bruised  her 
and  deprived  her  of  her  personal  liberty  for  the  space  of  ... . 
days,  to-wit,  from  ....  to in  contempt  of  said  injunc- 
tion order. 

That  the  said  misconduct  of  the  said  C . . . .  D . . . .  was 
calculated  to  and  did,  etc.  [proceed  as  in  last  preceding  form]. 

2592.    The  same,  for  attachment  of  witness  for  not  obey- 
ing a  subpoena. 

STATE   OF    

Court,    County. 


Stateof 

ex 

rel.A B , 

Plaintiff. 

vs. 

L....  M...., 

Defendant. 

[Venue.] 

A . . . .  B . . . .  being  duly  sworn  says  he  is  the  plaintiff  in 
the  action  of  A ... .  B . . . .  vs.  G . . . .  D . . . .  which  action  is 
now  pending  in  said  court. 

That  L .  . . .  M .  .  . .  is  a  necessary  and  material  witness  for 
the  plaintiff  in  said  action  without  whose  testimony  he  can 
not  safely  proceed  to  the  trial  of  the  issue  in  said  action,  as 
affiant  is  advised  by  0 ... .  P. . . .,  Esq.,  his  counsel,  who  re- 
sides at   after  affiant  has  fully  stated  to  his  said 

counsel  what  he  expects  to  prove  by  the  said  L. M. . . ., 

and  as  this  affiant  verily  believes. 

That  a  subpoena,   which  is  hereto   annexed,   was  duly 

served  on  said  L. . . .  M. . . .,  on  the  ....  day  of , 

19.  .,  at  said  county,  as  appears  by  the  proof  of  service  in- 
dorsed thereon;  and  that  the  fees  of  said  witness  for  said  trial 
and  attendance,  to-wit,  the  sum  of dollars,  were 


Chapter  CXLL]  1789  [Form  2593. 

duly  paid  [or,  tendered]  to  him,  as  appears  by  said  proofs  in- 
dorsed on  said  subpoena. 

That  the  distance  to  be  traveled  by  said  witness  in  com- 
ing from  his  residence,  where  said  subpoena  was  served  on 
him,  to  the  place  of  trial  of  this  action,  is  ....  miles. 

That  said  witness  has  failed  and  neglected  to  appear  as  re- 
quired by  said  subpoena,  and  has  disobeyed  the  command 
thereof. 

That  affiant  makes  this  affidavit  for  the  purpose  of  moving 
for  an  attachment  for  said  witness,  and  that  no  previous  ap- 
plication has  been  made  for  such  attachment. 

A....  B 

[Jurat] 

2593.    Warrant  of  arrest  of  contemner  (Minn.  Gen.  Stats. 
1913  sec.  8357-8359). 

[Venue.] 

THE  STATE  OF   

to  the  Sheriff  of County, 

GREETING:    You  are  hereby  commanded  to  apprehend 

L . . . .  M . . . .  of  ....  and  bring  him  before  the court 

of county  at  the  court  house  in  the  city  of 

forthwith  [or  state  time  and  place],  then  and  there  to  answer 
for  an  alleged  contempt  committed  by  him  in  not  [here  in- 
sert alleged  act  of  contempt]. 

[If  the  warrant  fix  a  time  in  the  future  for  the  appearance 
and  the  court  deem  it  best  to  admit  the  party  to  bail,  continue 
as  follows] : 

And  you  are  further  directed  and  authorized  to  admit  the 
said  L.  .  .  .  M. . . .  to  bail  for  his  appearance  at  the  time  and 
place  above  specified  by  taking  from  said  L. . . .  M. . . .  a 
recognizance  in  the  sum  of dollars,  with  two  suffi- 
cient sureties,  to  the  effect  that  he  will  appear  on  the  return 
of  this  warrant  and  abide  the  order  of  the  court  thereon,  or 
pay  as  may  be  directed  the  sum  therein  specified. 

Hereof  fail  not;  and  make  due  return  of  this  warrant  and 
your  doings  therein  at  the  time  and  place  aforesaid. 

Witness,  etc.  [as  in  Form  2580]. 


Forms  2594,  2595.]  1790  [Chapter  CXLI. 

2594.  Attachment  for  witness  disobeying  a  subpoena 

(Wis.  Stats.  1913  sees.  3480,  4065). 

THE   STATE   OF    

to  the  Sheriff  of County, 

GREETING:    Whereas,  it  has  been  made  to  appear  to 

our court  for county,  by  due  proof,  that  on 

the  ....  day  of ,  19. .,  at  said  county,  a  subpoena  is- 
sued out  of  said  court  directed  to  said  L. . . .  M. . . .  requir- 
ing him  to  appear  before  our  said  court,  on  the  ....  day  of 

,  19. .,  at  . . . .  o'clock  in  the  forenoon  of  said  day,  to 

give  evidence  in  a  certain  cause  then  and  there  to  be  tried 
between  A . . . .  B . . . . ,  plaintiff,  and  C . . . .  D . . . . ,  defend- 
ant, on  the  part  of  the  plaintiff,  was  duly  and  personally 

served  upon  said  L . . . .  M. . . .  at on  the  ....  day  of 

,  19.  .,  and  that  the  fees  of  said  witness  for  such  at- 
tendance, and  for  traveling  to  and  returning  from  the  place 
where  he  is  required  by  said  subpoena  to  attend,  were  then 
and  there  duly  paid  [or,  tendered],  and  that  he  has  failed  and 
neglected  to  attend,  as  required  by  such  subpoena,  and  is  not 
in  attendance. 

Now,  therefore,  we  command  you  that  you  attach  the  said 
L....    M....,   and  forthwith  bring  him  before  our  said 

court,  at  the  court  house,  in  the  city  of ,  in  said  county, 

to  answer  for  his  contempt  in  not  obeying  said  subpoena, 
and  to  testify  in  said  cause  in  which  he  is  summoned  as  afore- 
said. 

Witness,  etc.  [as  in  Form  2580], 

2595.  Attachment  for  juror  or  witness. 

[Title  of  Court] 

In  the  Name  of  the  State  of 

To  the  Sheriff  of county, 

GREETING:  G. . . .  H . .  .  .,  having  been  duly  summoned 
according  to  law  to  be  and  appear  in  the  above  entitled 
court  to  serve  as  a  juror  [or,  to  give  testimony  as  a  witness] 

and    on   the    day   of    ,  19..,  the  said  G 

H . . . .  was  called  to  serve  [or,  to  give  testimony]  as  afore- 
said in  a  cause  wherein  A . . . .  B ....  is  plaintiff,  and  C . . . . 
D. . . .  is  defendant,  and  came  not  but  made  default. 

YOU  ARE  therefore  commanded  forthwith  to  arrest  the 
above  named  G. . . .  H. . . .  and  bring  him  before  this  court 


Chapter  CXLL]  1791  [Form  2596. 

to  show  cause  why  he  should  not  be  punished  for  contempt,  or 
if  the  court  have  adjourned  for  the  term,  that  you  deliver 
him  into  the  custody  of  the  jailer  of  the  county  aforesaid. 
By  order  of  the  court: 

Witness  my  hand  and  the  seal  of 

[SEAL.]  said  court  this day  of 

19.. 

R....    S Clerk. 

[In  Colorado  the  following  form  is  in  use]: 
[Venue.] 

The  people  of  the  STATE  OF 

to  the  Sheriff  of county,  GREETING: 

WHEREAS,  It  has  been  shown  to  the  judge  of  the 

court  of  said  county,  that  G . . . .  H . . . .  was  duly  sum- 
moned to  appear  and  serve  as  a in  said  court  on  the 

....  day  of ,  19. .,  in  a  certain  cause  pending  in  said 

court  wherein  A . . . .  B  . . . .  is  plaintiff,  and  C . . . .  D . . . .  is 
defendant,  and  the  said  G. . . .  H. . . .  having  failed  to  at- 
tend said  court  as  he  was  therein  required  to  do.  You  are 
therefore  commanded   to   take   and  bring  before  the   said 

court  forthwith  the  body  of  the  said  G . . . .  H to  show 

cause  why  he  should  not  be  fined  for  contempt. 

Witness,  etc.,  [as  above]. 

2596.  Writ  of  habeas  corpus  to  bring  up  contemner  al- 
ready in  custody  by  virtue  of  other  process  (Wis. 
Stats.  1913  sec.  3485;  Minn.  Gen.  Stats.  1913 
sec.  8363). 

[Venue.] 

THE  STATE  OF 

to  the  Sheriff  [or,  Keeper  of  the  Common  Jail  of 

County, 

GREETING:    We  command  you,  that  you  have  the  body 
of  L ....  M .... ,  detained  in  our  said  jail  under  your  custody, 

as  it  is  said,  under  safe  and  secure  conduct,  before  our 

court  for county  at  the  city  of in  said  county 

on  the  ....  day  of ,  19. .,  at  ....  of  the  clock,  on  the 

....  noon  then  and  there  to  answer  for  an  alleged  contempt 
committed  by  him  in  not  [here  insert  alleged  act  of  contempt]. 


Form  2597.]  1792  [Chapter  CXLI. 

And  you  are  further  commanded  to  detain  the  said  L . . . . 
M ....  before  our  said  court  at  the  time  and  place  aforesaid 
until  the  further  order  of  the  court. 

Hereof  fail  not;  and  make  due  return  of  this  writ  with 
your  doings  thereon  at  the  time  and  place  aforesaid. 

Witness,  etc.  [as  in  Form  2580]. 

2597.  Order  that  interrogatories  be  filed,  after  attach- 
ment (Wis.  Stats.  1913  sec.  3488;  N.  Dak.  Rev. 
Codes  1905  sec.  7560). 

THE  STATE  OF 

Court  for  County. 


The  State  of ex  rel.  A . . .  B . . . , 

Plaintiff, 
vs. 

L....  M...., 

Defendant. 


An  attachment  having  been  issued  out  of  this  court 
against  L . . . .  M . . . .  upon  the  complaint  of  A ... .  B , . . . , 
charging  him,  the  said  L . . . .  M . . .  . ,  with  misconduct  in 
violating  the  order  of  this  court,  made  and  entered  in  an  ac- 
tion, wherein  A . . . .  B .  .  .  .  is  plaintiff,  and  C . . . .  D . . . .  de- 
fendant, dated ,  19.  .,  directed  to  and  requiring  said 

L. . . .  M. . . .  to  [state  act  required;  or  otherwise  state  the  act 
of  contempt  according  to  the  fact]. 

And  the  said  L . . . .  M . . . .  being  in  custody  and  now  here 
present  to  answer  the  attachment  herein,  and  appearing  by 
W . . .  .  X . . . . ,  his  attorney,  and  the  relator  by  Y . . . .  Z .  . . . , 
his  attorney,  and  not  admitting  but  denying  the  offense 
charged;  after  hearing  counsel  for  the  respective  parties, 

ORDERED  that  the  said  A B file  with  the  clerk 

of  this  court  and  serve  on  said  L. . . .  M. . .  .'s  attorneys 
within  ....  days,  interrogatories  specifying  the  facts  and 
circumstances  alleged  against  said  L .  .  .  .  M .  .  .  .  and  re- 
quiring his  answer  on  oath  thereto,  and  that  within  .... 
days  after  such  service  of  said  interrogatories,  the  said  L . . . . 
M . . . .  file  and  serve  on  the  relator's  attorney  his  written 
answers  thereto  on  oath. 


I 


Chapter  CXLL]  1793  [Forms  2598, 2599 

Further  ordered  that  said  L M be  held  in  custody 

by  the  sheriff  [or,  attend  without  further  notice  before  this 
court],  to  abide  the  judgment  and  determination  thereof  as  to 
his  alleged  contempt. 

[Date,]  By  the  Court: 

J....  K Circuit  Judge. 

2598.  Interrogatories  to  be  filed  under  last  preceding 

order  (Wis.  Stats.  1913  sec.  3488;  N.  Dak.  Rev. 
Codes  1905  sec.  7560). 

[Title  as  in  last  preceding  form.] 

And  now  comes  the  said  relator  pursuant  to  the  order  of 
this  court  and  files  the  following  interrogatories  to  be  pro- 
pounded to  L....  M....,  touching  a  contempt  alleged 
against  him  in  the  above  entitled  matter  for  [here  state 
contempt  charged] : 

I.  Are  you  the  defendant  in  an  action  pending  in  said 
court  entitled  A B vs.  L M ? 

II.  Was  an  order  of  said  court  served  on  you,  on  the  .... 

day  of ,  19. .,  requiring  you  to  [here  state  requirement 

of  the  order]1 

III.  If  you  answer  yes  to  the  foregoing  second  inter- 
rogatory, did  you  obey  said  order? 

IV.  If  you  answer  no  to  the  third  interrogatory,  state 
why  you  failed  to  obey  said  order. 

[Follow  with  other  questions  as  the  case  may  require.] 

W....    X...., 
Attorney  for  Relator. 

2599.  Answers  to  interrogatories  in  contempt  proceed- 

ings (Wis.  Stats.  1913  sec.  3488;  N.  Dak.  Rev. 
Codes  1905  sec.  7560). 

[Title  as  in  Form  2597.] 

Answers  of  the  said  L . . . .  M . . . .  to  the  interrogatories 
filed  by  the  relator  herein  on  the  ....  day  of 19. . 

I.  To  the  first  interrogatory  he  answers.  Yes. 

II.  [Proceed  in  like  manner  to  answer  each  interrogatory.] 

L....  M.... 
[Venue.] 
113 


Form  2600.]  1794  [Chapter  CXLI. 

L . . . .  M . . . .  being  duly  sworn  says  he  is  the  person 
charged  with  contempt  in  the  above  entitled  matter  and  that 
the  above  and  foregoing  answers  to  the  interrogatories  filed 
by  the  relator  herein  are  true. 

J-i  •    •    •    •      iVX  •    •    •    • 

[Jurat] 

2600.  Judgment  of  conviction  in  civil  contempt  proceed- 
ings and  directing  payment  of  fine  (Wis.  Stats. 
1913  sec.  3489). 

[Title  of  court  and  cause  and  caption  as  in  first  form  in  this 
chapter.  If  the  defendant  comes  before  the  court  on  order  to 
show  cause  the  title  used  should  be  the  title  of  the  action  or  pro- 
ceeding in  which  the  contempt  was  committed,  if  on  attach- 
ment or  habeas  corpus  this  order  should  be  entitled  "State  of 
ex  rel.  (complainant)  vs.  L. . . .  M . . . .  (contemnerY']. 

The  order  of  this  court  dated    ,   19..,  requiring 

L. . . .  M to  show  cause  why  he  should  not  be  punished 

as  for  contempt  for  his  misconduct  in  [here  specify  act  of 
contempt],  coming  on  to  be  heard  before  the  court,  at  the 

time  fixed  therein,  and  said  L . . . .  M having  appeared 

in  person,  and  by  W X ,  his  counsel,  and  the  plain- 
tiff also  appearing  by  his  attorney[sl  herein,  and  having  heard 
the  proofs  and  arguments  of  the  parties,  and  given  full  op- 
portunity to  the  said  defendant  to  make  defense  and  purge 
himself  of  said  contempt. 

ORDERED  and  adjudged  that  L M is  guilty  of 

contempt  in  having  wilfully  disobeyed  the  order  made  by 

the  court  in  this  action,  on  the  ....  day  of ,  19. ., 

in  this,  that  he  [state  the  violation  specifically]. 

That  the  said  misconduct  of  said  L . . . .  M . . . .  was  cal- 
culated to  and  actually  did  defeat,  impair  and  prejudice  the 
rights  and  remedies  of  the  said  A....  B....,  plaintiff 
herein.  ♦ 

That,  as  punishment  for  said  misconduct,  the  said  L . . . . 

M. . . .  do  forthwith  pay  a  fine  of dollars  and  the 

costs  and  expenses  of  these  proceedings,  amounting  in  all  to 

dollars,  and  that  he  be  committed  to  the  county 

jail  of county  until  said  fine  and  costs  and  expenses  be 

paid  and  [if  the  misconduct  consist  of  the  omission  of  an  act 


Chapter  CXLL]  1795  [Forms  2601-2603. 

still  within  his  power],  until  he  shall  comply  with  said  order 
by  [here  state  the  act  to  be  done]. 

By  the  Court: 

J....    K Judge. 

2601.  The  same,  where  indemnity  for  actual  loss  is  or- 

dered to  be  paid  instead  of  a  fine  (Wis.  Stats. 
1913  sec.  3490;  N.  Dak.  Rev.  Codes  1905  sec. 
7562). 

[Proceed  as  in  last  preceding  form  to  the  *  and  continue]'. 

That  as  punishment  for  said  misconduct  the  said  L.... 
M . . . .  forthwith  pay  to  A ....  B ....  as  indemnity  the  actual 
loss  and  injury  produced  to  said  A. . . .  B . . . .  by  said  mis- 
conduct which  is  adjudged  to  be  the  sum  of dol- 
lars together  with dollars,  the  costs  and  expenses  of 

these  proceedings,  and  that  in  default  of  the  payment  of 

said  indemnity  and  costs  and  expenses  the  said  L . . . .  M 

be  committed  to  the  common  jail  of county  until 

said  indemnity  and  costs  and  expenses  be  paid,  etc.  [as  in 
last  preceding  form]. 

[In  Minnesota  the  indemnity  may  be  imposed  in  addition 
to  the  fine  (Minn.  Gen.  Stats.  1913  sec.  8364),  but  in  Wisconsin 
it  takes  the  place  of  the  fine.] 

2602.  The  same,  where  imprisonment  is  ordered. 

[Proceed  as  in  Form  2600  to  the  *  and  continue]: 

That  as  punishment  for  said  misconduct  the  said  L.... 

M. . . .  be  imprisoned  in  the  common  jail  of county 

for  the  term  of  ... .  days  from  this  date,  or  until  he  be  thence 
discharged  according  to  law.  Let  a  commitment  issue  ac- 
cordingly. 

By  the  Court: 
J....  K Circuit  Judge. 

2603.  Commitment  for  civil  contempt. 

THE  STATE  OF   

to  the  Sheriff  of  the  County  of 

GREETING:    Whereas,  on  the day  of ,19. ., 

upon  proceedings  duly  brought  before  the   court  of 


Form  2603.]  179a  [Chapter  CXLI. 

county,  L. . . .  M . . . .  was  adjudged  to  be  guilty  of 

contempt  of  said  court,  in  this,  that  [here  state  the  contempt 
found  and  adjudged,  with  certainty]. 

And  whereas  it  was  then  and  there  adjudged  by  this  court 
that  the  said  L . . . .  M . . . .  be  punished  by  [here  state  terms 
of  judgment]. 

Now  therefore  we  command  you  that  you  take  the  body, 
etc.  [proceed  as  in  Form  2580  conforming  to  the  terms  of  the 
judgment]. 


iiiiiii mil  Mill  Mill  mil  mil  mil  mil  mil  mil  Hill  nil  nil 

AA    000  850  981     2 


